Published tribunal order
Tenancy Tribunal case 5340801 — Exemplary damages at 646 Te Aroha-Gordon Road, Te Aroha West, RD 1, Te
Decided 17 Oct 2025 · Published 17 Oct 2025 · Application 5340801
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- The tenancy of [The tenant/s] at 646 Te Aroha-Gordon Road, Te Aroha West, RD 1, Te Aroha 3391 is terminated, and possession is granted to Linda Maree Thompson, at 11.59pm, Friday, 7 November 2025
- The rent is reduced to $270.00 per week from the date of the order, being 17 October 2025 to the end of the tenancy being 7 November 2025.
- All other claims are dismissed.
- immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing.
- The tenancy began on 25 April 2025.The landlord moved a pre-built tiny home onto her property to be a permanently building for rent.
- The Landlord did not get consent from the local council for this building believing that because it was under 70 metres squared that she did not need one and she informed the tenant of this.
- The tenant disputes being told that there was no consent saying she discovered this when she was unable to obtain insurance for her belongings.
- The premises were accessed via a concrete driveway and a ramp was added so that gas bottles could be delivered and the tenant could get her lawn mower onto the property to do the lawns. The landlord said that it was not a good ramp and agreed it had gaps and requested that the tenant not use it, and she took over the lawn mowing responsibilities.
- After the tenant’s discovery of the lack of consent she found that there was no code of compliance for the premises and sought information from the local council who inspected the premises. No reports were available from the council at the time of the hearing.
- The tenant said that the electrical work was not finished and the last step to the garden was at the wrong height.
- During the tenancy the landlord added a metal barrier gate over the front of a ranch slider from the bedroom. The gate was just over the height of the open window and was there instead of steps or a deck for safety reasons. The tenant said that this caused the premises to be unsafe as it made an awkward exit point if there was a fire.
- The tenant claimed that the notice ending the tenancy was retaliatory and sought exemplary damages for breaches of the landlords’ obligations.
- The party bringing the claim to the Tribunal has the responsibility to establish it to the civil law standard being “on the balance of probabilities”. The balance of probabilities means more likely than un-likely that their version of events occurred. This obligation carried by the applicant is referred to as the “burden of proof”.
- Evidence was provided by both parties at the hearing and I may not refer to all of it in this decision, the parties can be assured that I have considered it as part of my reasoning. Retaliatory notice
- On 25 August 2025 the landlord gave the tenant a notice ending the tenancy on 9 October 2025. The tenant claims the notice is retaliatory.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986,RTA.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
- The tenant said that the parties had a good relationship but after a conversation on the 10 or 12 th of August she noticed a change in the landlord’s attitude towards her. The parties had discussed overdue maintenance and a list of jobs to be done was made. The tenant told the landlord that she could not get contents insurance because there was no consent or code of compliance issued for the premises.
- Thirteen days later the landlord issued a notice terminating the tenancy stating that they required the premises as a principal place of residence for a member of the owner’s family.
- The tenant believed that the tenancy was ended because she raised issues with the landlord. She said that she would not have known about the lack of consent if her insurance company had not raised it.
- The landlord said that she received a call from her brother that needed to be taken care of due to a medical issue. Copies of three medical certificates we provided dated from 4th of April to 5th of June 2025 stating that he was unfit to continue his usual occupation. The landlord said he has not returned to work/
- The landlord disputed that the termination was retaliatory stating that she was upset having to terminate the tenancy but she needed to take care of her brother who is currently unwell and not working.
- The landlord said that the things that the tenant asked to have done were reasonable and were being attended to and it was not the reason that she ended the tenancy, she required the premises to look after her unwell family member.
- The tenant has the onus to prove that the termination was retaliatory. When determining if a notice to terminate is retaliatory the Tribunal has previously considered, among other things, a) What was the timing between raising issues and termination. b) Was there a causal connection between the meeting and the termination. c) Were the reasons given genuine.
- The tenant believes that the discussion held 13 days before were the reason for the termination. I find as far as timing there was about 2 weeks between the events and that of the notice. The landlord agreed with the work that was to be done at the premises and said in the hearing that she did not have building consent and that she had told the tenant about this before she moved in. On this basis it appears that the landlord had no issues with the maintenance or consent requirements.
- The reasons from the landlord I find are genuine. There needs to be more than an assertion that the landlord requires the premises for the purposes stated and the provisions of the medical certificates of her Brother support her grounds for termination.
- The claim for retaliatory notice is dismissed. Tenancy termination date
- This leaves the question of an end date to the tenancy. The original date for termination has passed and the tenancy continued following an interim order of the Tribunal dated 19 September 2025 preserving the parties’ position until a hearing could be held. The landlord requested termination as soon as possible and the tenant said that they have been looking for accommodation. After considering the circumstances the tenancy is terminated on Friday 7 November 2025 which is 21 days from the date of this order, or at an earlier date as agreed by the parties.
Did the landlord breach their obligations ?
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The District Court has confirmed that when there are multiple claims for a breach under a single section (section 45 here), then only one order of exemplary damages can be made. I will therefore address the individual claims for exemplary damages for breaches of section 45 below and then consider an award . Building consent
- The landlord did not obtain a code of compliance or a building consent for the premises. The landlord agreed with this and said from her research and what she was told she thought that with a tiny home she did not need one. The landlord confirmed that this was a brand new build and all interior electrical and plumbing work had compliance certificates.
- The landlord was entitled to reattach the power switch covers after painting the walls inside, which she did.
- The landlord did not provide any evidence supporting her belief that a code of compliance and building consent was not required.
- I find they have committed an unlawful act. Steps
- The tenant claimed that the bottom step to the garden was a different size and needed to be raised. The landlord said that under instruction from her licenced building practitioner Mr. G Armstrong, soil and turf were added to the ground which effectively raised the level of the final step.
- The tenant agreed that the work had been done but still believed it was slippery and unstable. She said her advice was that it still did not meet building regulations but provided no evidence or reports in support of this. The evidence provided does not support this claim and it is dismissed. Ramp
- The premises were raised and there was a drop from the driveway to the lawn areas. A ramp was made for access to the garden for lawn mowing and delivery of gas bottles. The landlord agreed that the ramp was not a good design because there was a gap between it and the concrete wall where services had been installed.
- To protect the tenant the landlord requested that they did not use this ramp and mowed the lawns herself. There was no discussion on how the large gas bottles were to be delivered.
- The landlord said she was told because this was not a main entrance to the premises that the ramp did not have to comply with the building act.
- I disagree, the ramp was not safe and was not able to be safely used by the tenant or others at the premises. It was not disputed that the ramp was not good had gaps and could not be used as intended.
- I find the landlord has committed an unlawful act. Sliding door barrier
- The premises had sliding doors off the living area and one off the bedroom. During the tenancy the landlord had a barrier erected in front of the sliding door for safety purposes as there was no room in the section for steps or deck to be added.
- The tenant claims that this presents a fire hazard as she has no means to escape if there is a fire in the lounge/dining area and it is a breach of the Building Code and Housing and Improvement Regulations 1947.
- The Housing and Improvement Regulations 1947 provide that every living room requires an adequate means for escape and the Building Code generally requires adequate means of escape from a fire and specifies movement to a place of safety.
- This claim is complicated by the lack of code of compliance certificate from the local council as there is no official confirmation that the means for escape are adequate.
- The issue is, based on the evidence provided, can the Tribunal be certain that there is at least one exit that is easily accessible and the answer is yes.
- The plans for the premises were provided and photographs which clearly show sliding doors off living room to the deck and lawn which is easily accessible .
- The tenant’s claim was that two means of escape are required but no evidence was provided as to what legislation requires this. Even if this was established , the sliding door barrier over the sliding door in the bedroom I find does not impede escape. The barrier is just over window height and provides no more awkward escape than a window would. The tenant said it was also the gap between the barrier and outside wooden boundary fence that was an issue, being less than a meter after the barrier was erected. There was no reference to a statutory requirement for this to be a certain distance.
- This claim is dismissed.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in s 109 of the RTA. Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. the public interest and e. whether it is just to make an award
- I have found that the landlord has committed two breaches of the act by not obtaining consents and having a dangerous ramp. The landlord knew about theses breaches and this affected the tenant’s insurance and use of the premises. It is in the public interest that landlords know and comply with relevant legislation when they have a tenancy as breaches affect the tenant and others who visit the premises. I find it just to make an award of $700.00 for theses breaches.
Were the premises unlawful?
- The tenant sought a rent rebate because the premises were unlawful. It was not disputed that there was no building consent and no code of compliance.
- The premises were brand new and the was no claim that they were not safe or sanitary.
- Section 78A(2) RTA states (2) Unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but– (a) that cannot lawfully be occupied for residential purposes by that person; and (b) where the landlord’s failure to comply with the landlord’s obligations under s36 or s45(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation
- The landlord failed to comply with s45 (1)( c ) RTA The landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises by failing to obtain the required consents.
- This was considered in Kemp v Elliott [2022] NZDC 17792 where there was a lack of a code of compliance certificate, CCC. It was held that a CCC is a statutory safeguard establishing that building work has been consented and complies with the consent. It is not just a procedural matter but a “fundamental step” in the regulatory regime. Failing to obtain a CCC was a breach of s45(1)(c). The premises were unlawful because of a failure to obtain a CCC.
- Under section s78A(4) RTA (4) Without limiting the generality of s77 or the nature or extent of orders that the Tribunal may make – (a) The Tribunal may order the landlord to pay to the tenant – (i) The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii) An amount that is the sum referred to in (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
- I find that due to this technical failure the premises are unlawful. In making an award I have considered that the tenant was not put a risk and the premises were not unsafe, The tenant has already received a back dated rent rebate of $50.00 and I find it just to award a rebate of $150.00 to cover the last three 3 weeks.
- I find it appropriate to reduce the rent by a further $50.00 per week for this breach and back date this to start of the tenancy. This is a total rent reduction of $100.00 per week.
- To clarify the rent reduced from 25 April 2025 to the date of the hearing, being 17 October 2025 at $50.00 per week equals $1257.14 which is awarded. The rent is also reduced from the date of the hearing to $270.00 until Friday 7 November 2025 when the tenancy ends.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee and grant name suppression as requested.