Published tribunal order
Tenancy Tribunal case 5411778 — Healthy homes
Decided 18 Mar 2026 · Published 18 Mar 2026 · Application 5411778
- Healthy homes
- 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. 2.
Reasons
Background
- The tenancy began on 19 May 2025 and ended on 7 December 2025.
- The property is a cabin.
- The tenant’s application sought compensation and exemplary damages under multiple headings.
- The hearing took place in [Event location suppressed] on 27 February 2026. Mr Barth attended the hearing in person. [The tenant/s] attended by phone with the consent of the Tribunal. Jurisdiction
- Mr Barth referred to the tenancy as a “holiday rental agreement”.
- The Residential Tenancies Act 1986 (“RTA”) does not apply “where the premises are let for the tenant’s holiday purposes”. 1
- Although (I understand) Mr Barth has rented the property as a short stay / holiday home previously, I am satisfied that [The tenant/s] did not rent the premises for holiday purposes. This was [The tenant/s]’s only residence. He stayed in the property for several months, over winter.
- This was a standard residential tenancy. The RTA applies. Tenancy agreement
- There is no signed tenancy agreement.
- Mr Barth said that he has a draft version of the agreement in Germany.
- Landlords must provide the tenant with a written tenancy agreement, signed by the landlord, before the start of the tenancy. 2
- The written agreement must include an insulation statement 3 , a healthy homes statement 4 , and an insurance statement 5 .
- It is an unlawful act for a landlord to fail to provide a written tenancy agreement, and to fail to provide an insulation statement, a healthy homes statement, and an insurance statement.
- The Tenancy Tribunal may award exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally. In considering an award of exemplary damages, the Tribunal must have regard to: 6 a. The intention of the person who committed the unlawful act; and 1 Section 5(1)(m) RTA 2 Section 13(2) RTA 3 Section 13A(1A) RTA 4 Section 13A(1CA) RTA 5 Section 13A(2) RTA 6 Section 109 RTA b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
- The maximum award of exemplary damages for failing to provide a written tenancy agreement is $750. The maximum award of exemplary damages for failing to provide the statements detailed above is $750.
- I accept that Mr Barth was not aware that he entered into a ‘standard’ residential tenancy with [The tenant/s]. Mr Barth understood that it was a ‘holiday rental’, outside of the RTA.
- If Mr Barth had met his duties under this section, [The tenant/s] would have been aware, before the commencement of the tenancy, that the premises did not meet the healthy homes standards.
- Having regard to these factors, I will award exemplary damages of $500.00. Unlawful residential premises
- The Tenancy Tribunal may make a range of orders if the Tribunal determines are unlawful residential premises.
- Unlawful residential premises are: 7 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 section 36 or 45(1)(c) [...] has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation
- Section 45(1)(c) states that landlords must: Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises
- Mr Barth build the cabin himself with the assistance of a friend.
- Mr Barth was legally required to obtain building consent to build the cabin. 8 He did not.
- The premises could not lawfully be use as a place of residence. The unlawfulness was due to Mr Barth’s failure to comply with the legal requirement to obtain a building consent. 7 Section 78A(2) RTA 8 Section 40, Building Act 2004 (previously, s 52 Building Act 1991)
- The premises were unlawful residential premises.
- Section 78A(3)(a) RTA states that 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 subparagraph (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.
- During this relatively brief tenancy [The tenant/s] paid $4,300.00 in rent in cash or bank transfers. He ‘paid’ a further $600.00 by rent waivers or credits.
- It is rare for the Tribunal to award a full refund of all of the rent paid during the tenancy. Consideration of fairness in section 78A(3)(a)(ii) usually involves recognition of the fact that the tenant received some benefit from the accommodation, and that the premises not being lawful is not equivalent with the premises not being well constructed.
- In this instance, there is no evidence that the premises being poorly constructed or unsafe, although (as discussed below) the premises did not meet the healthy homes standards in several respects.
- Balancing those considerations, I will award a refund of 50% of the rent paid during the tenancy. Bond
- [The tenant/s] paid a bond of $400.
- Landlords must forward all bond payments to the Bond Centre within 23 working days of receipt. 9 Failure to do this is an unlawful act. Exemplary damages of up to $1500 can apply.
- Mr Barth did not pay [The tenant/s]’s bond to the Bond Centre.
- It is appropriate to award exemplary damages for this unlawful act.
- It is a mitigating factor that Mr Barth genuinely, but incorrectly, understood that the RTA did not apply to this tenancy.
- There is a legitimate public interest in ensuring that landlords deal properly with tenant’s bonds.
- I will award exemplary damages of $500.00. 9 Section 19(1)(b) RTA Healthy homes standards
- Landlords must meet the healthy homes standards. 10
- A breach of this duty is an unlawful act. Exemplary damages of up to $7200 can apply.
- On the evidence provided to me, my findings are that: a. The premises did not meet the healthy homes standard for insulation. The premises had ceiling insulation but only partial underfloor insulation. b. The premises did not meet the healthy homes standard for ventilation. The premises had mechanical extraction in the bathroom but not the kitchen. c. It is not proven that the premises do not meet the healthy homes standard for draughts. [The tenant/s] alleged that the cabin was draughty, which Mr Barth disputed. There is not enough evidence to establish that the premises had unreasonable gaps. d. It is not proven that the premises failed to meet the healthy homes standard for moisture ingress and drainage.
- The situation regarding heating is more complex.
- There is a wood burner in the premises. Mr Barth said that he cleaned / serviced the wood burner before the start of this tenancy.
- [The tenant/s] said that when he used the woodburner the cabin would become smoky.
- In July, there was an incident where something ‘dropped’ from the flue into the firebox when [The tenant/s] had the fire door open. Smoke and ash blew into [The tenant/s]’s face. [The tenant/s] spent some time in hospital after this.
- [The tenant/s] let Mr Barth know about what happened. [The tenant/s] stopped using the wood burner.
- Mr Barth argued that the wood burner was still safe and fully functioning, and that [The tenant/s] chose to stop using it because he did not want to pay for firewood.
- However, the text messages exchanged them at that time show that Mr Barth clearly instructed [The tenant/s] to stop using it. Some of the relevant messages are: [The tenant/s]: If fireplace is inop then rent is free..says..the nz law MB: fire place inop so heat electronically says chat gpt. Easy solution, no cost for firewood 10 Section 45(1)(bb) RTA [The tenant/s]: Health and safety hazard 2015 Holliday rental requirement. But I will just let it go...since I’m a nice guy MB: Landlord now tells you: DO NOT OPERATE FIREPLACE MB: Buy a heater from op shop, plug it in socket. Most nz houses are heated that way
- Mr Barth had a continuing obligation to ensure that the premises had a functional fixed means of heating in the main living area of the premises.
- After the incident in July, and based on Mr Barth’s clear instructions, [The tenant/s] could not use the fireplace.
- Therefore, the premises did not meet the healthy homes standard for heating for part of the tenancy.
- Tenanted premises must have at least 1 qualifying smoke alarm installed in the sleeping space or within 3m of the entrance to the sleeping space.
- There was no smoke alarm installed in the premises. During the tenancy [The tenant/s] found a smoke alarm sitting on top of the fridge. The smoke alarm dated back to 2009.
- My finding is that Mr Barth breached his legal duties in respect of meeting the healthy homes standards and complying with the requirements for smoke alarms.
- It is appropriate to award exemplary damages for these breaches.
- As noted above, the maximum award of exemplary damages is $7,200.
- In considering an appropriate award of exemplary damages I have had regard to the following factors: a. These are small and basic premises. The rent was $200 per week. b. [The tenant/s] was familiar with the premises, having lived there previously. c. There are multiple proven breaches of the healthy homes standards. d. Mr Barth genuinely understood that the RTA did not apply because the premises were used for holiday accommodation. e. The absence of an installed and complying smoke alarm potentially put the premises and [The tenant/s]’s safety at risk. f. There is a legitimate public interest in ensuring that landlords provide premises that meet the healthy homes standards.
- I will award exemplary damages of $2,400.00. Bond, filing fee, name suppression
- The tenancy has ended. [The tenant/s] is entitled to a refund of the bond in full.
- [The tenant/s] was successful in this application. I must award him the filing fee of $28.00. 11 Name suppression is granted to [The tenant/s] on the same basis. 12