What was Tenancy Tribunal case 5428879 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5428879?

Property Damage: $200.00 awarded to tenant; Smoke Alarms: $2,000.00 awarded to tenant

What type of tenancy dispute was case 5428879?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5428879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13860574-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5428879 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5428879?

Property Damage: $200.00 awarded to tenant; Smoke Alarms: $2,000.00 awarded to tenant

What type of tenancy dispute was case 5428879?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5428879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13860574-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5428879 — Smoke alarms

Claims and awards in Tenancy Tribunal application 5428879 — net $2,200.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: S45(1A)- Breach of heating and breach of smoke alarms	$2,000.00	S45(1A)- Breach of heating and breach of smoke alarms
Exemplary damages: s13(1CA	$200.00	109. The Court ruled that Mr Hu pay $200 in exemplary damages for a breach of s13A RTA.
Net award	$2,200.00
Total payable by Landlord to Tenant	$2,200.00

Claims and awards in Tenancy Tribunal application 5428879 — net $2,200.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: S45(1A)- Breach of heating and breach of smoke alarms	$2,000.00	S45(1A)- Breach of heating and breach of smoke alarms
Exemplary damages: s13(1CA	$200.00	109. The Court ruled that Mr Hu pay $200 in exemplary damages for a breach of s13A RTA.
Net award	$2,200.00
Total payable by Landlord to Tenant	$2,200.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $2,200.00 immediately, calculated as shown in table below:
The tenant has proven that the landlord failed to provide a qualifying heater (s45(1)(bb) RTA) and provide a qualifying smoke alarm s45(1)(ba) RTA and failed to provide a Heathy Homes Statement in the tenancy agreement (s13 (1CA) RTA).
The remainder of the tenant’s claims are not proven and therefore dismissed.
The landlord’s claim for rent arrears is not proven and therefore dismissed.

Reasons

The hearing of this matter took place over two days on the 15 and 16 June 2026. Both parties attended the hearing.
The Tribunal was assisted by a Mandarin interpreter.
Since the case conference on the 1 May, the tenancy has ended by agreement on the 18 May. This means that the landlord no longer seeks termination and possession. Background
The landlord’s property is a two storied home in Suburb] which was built in or about 1968.
The tenancy premises is the downstairs. The tenant’s premises consists of a living area, separate bedroom, kitchenette and bathroom. The tenant’s premises are separated from the landlord’s upstairs portion of the house by a door that is deadbolted on both the landlord and the tenant’s side of the house.
The landlord also has a separate room with a separate entrance downstairs. She operates her [redacted] business from that room.
The tenancy began after the landlord placed an advertisement in Red Note which is a Chinese language site, similar to Facebook Marketplace. Red Note does not have a separate section for tenancies and flatmates, they are both contained under the same heading.
The tenancy began on the 18 January 2025. The landlord believed that the tenant was her flatmate because the tenant was sharing her home. The landlord had advertised the property as the Chinese character fang-ke which literally translates as house guest; and I am told is used sometimes for situations which encompass both flatmate arrangements and residential tenancies. The landlord says that believing that the tenant was her flatmate /house guest she had him sign a flat sharing agreement.
The landlord had previously been a landlord of another residential tenancy in a dwelling that was completely separate from her own. She confirmed at hearing, that she used a separate tenancy agreement for that tenancy, but she thought that when a party shared the same ‘house’ as her that they should be flatmates. She accepts that she did not take any legal advice on the arrangement. She confirms that prior to the tenant living in the property she had another woman living downstairs in the same space for nine months, who had also had a flatmate agreement and did not have any issues. Before that tenant moved in, the landlord’s family occupied the space.
The tenant is a professional man, he tells me that he has lived in rented accommodation both as a flatmate and as a tenant. He tells me that he did not consider the appropriateness or otherwise of the flatmate agreement he signed nor did he take any advice on the status of the agreement or tenancy before he entered into the agreement. His position is that it is the landlord’s responsibility to ensure that the tenancy agreement they give a tenant accurately reflects the type of arrangement the parties have.
The rent was $300 per week. The tenant’s rent included internet water and electricity.
I have been provided with the message history (we chat log and emails) between the parties, it is, as tenant submitted at hearing, the only accurate and contemporaneous record of how the parties interacted. It is fair to say that since this dispute arose that the parties’ narrative of the tenancy and their relationship has been coloured by their subsequent dispute and the claims that they have made against each other.
The message log is helpful, it shows me that for the first year of the tenancy, the parties enjoyed a good relationship with each other. In a text exchange on the 17 January 2026, the tenant said: “ I really enjoy living here and appreciate having you as a landlord: I’d love to stay long term.” 1 The landlord replied: “ I also really appreciate you living here for such a long time and that we have gotten along very well.”
On the 17 January 2026 the landlord proposed a rent increase from the 18 January (the anniversary of the tenancy) by $20 per week, she says to reflect the increase in the cost of living. The tenant disputed the rent increase, because he says the landlord had increased the rent in July 2025 asking for further payment because of the increased cost of electricity.
It was at that point that the parties’ relationship deteriorated. The landlord asked the tenant to leave the property, and the following day gave notice to the tenant.
The tenant filed a claim on the 21 January 2026, he claimed that the tenancy was unlawful and sought all his rent back, he also claimed compensation and exemplary damages for several provisions in the Act. As at 16 March he sought a total of $50,406.90 2 (in compensation and exemplary damages) together with a full refund of rent from 17 March to 18 May from the landlord.
The tenant’s claims at filing have remained much the same as what they were when the tenant first filed them even though there has been a significant number of documents filed and evidence given since then. 1 See page 6 and 7 of the We Chat log. 2 See tenant’s amended summary of claims and page 2 tenant’s submissions for claim 1- unlawful premises.
The landlord says she was shocked by the claim she says that she went from enjoying what she thought was a good relationship with the tenant on the 17 January 2026 to facing a claim of over $50,000 on the 21 January 2026. That amount she says would have been ruinous for her because of her age and health.
The landlord sought to defend the claims on a jurisdictional basis. On the 27 February I determined that the tenancy was a separate residential tenancy, and the Tribunal had jurisdiction to hear the claims. The claims to be determined.
The tenant filed his claim first he confirms that he is claiming: a. That the premises are unlawful (section 78A RTA) and he is seeking a full refund of rent paid. b. That the landlord gave him retaliatory notice (section 54 RTA). The landlord seeks compensation and exemplary damages for this claim. c. That the ventilation in the bathroom is inadequate and non-compliant (s45(1)(bb) RTA. The tenant seeks compensation (the cost of the dehumidifier) and exemplary damages for this breach. d. That the heating does not meet the Healthy Homes Standards (s45(1)(bb) RTA) the tenant is seeking compensation and exemplary damages for this breach. e. That the property has a non-compliant smoke alarm. He seeks exemplary damages for this breach. f. That the landlord charged for guests and overcharged for electricity (the tenant claims these were breaches of s17, s38 and s39 RTA). The tenant seeks reimbursement of the overpayment and exemplary damages where appropriate. g. That the landlord failed to provide a written tenancy agreement and complete statements in respect of the compliance level of the Healthy Homes. (s13 RTA). The tenant seeks exemplary damages in respect of these claims. h. That the landlord breached s137 by having him sign a flatmate agreement not a tenancy agreement. The tenant seeks exemplary damages for this breach. i. That the landlord has breached the tenant’s quiet enjoyment and privacy - s38 RTA, the tenant seeks compensation and exemplary damages for this breach. j. The costs associated with obtaining the LIM report and other documents necessary to support his claim and the filing fee (s102 RTA).
The landlord claims she is owed $5 per week in rent as agreed by the parties from the18 January 2026-18 May 2026.
Both parties claim the filing fee and seek name suppression. Name suppression.
At the hearing I indicated to the parties that I would be suppressing both of their names. This is because they both suffer from chronic health conditions that are exacerbated by stress and anxiety. Each party provided documents to the Tribunal which evidences their conditions. I consider that the effects of publication of a party’s name is likely to cause them significant stress and would be detrimental on their health. I consider that the public interest can still be met by publication of the decision with the parties’ names and identifying features and the address of the property being redacted. The burden of proof.
A party (in this case almost all the claims are by the tenant) who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.
The parties have filed a voluminous amount of evidence. I confirm that I read and reviewed all the evidence before making this decision. I have only referred to the relevant evidence or submissions in this decision. How this decision will be structured.
I had indicated to the parties at the hearing that when making my decision that I would address all of the specific claims, for example -failure to meet ventilation standards and then I would address whether the property was unlawful or not. However, when I have come to write the decision, I consider that is more logical to address the issue of unlawful residential premises first, and then each specific claim because if the property is unlawful then each breach may be taken into consideration when determining what if any compensation should be awarded if the premises are found to be unlawful residential premises. 3
I will deal with the claims that concern the condition or a claimed defect at the property first and then will deal with other claims. Application of s85 RTA Residential Tenancies Act 1986.
Section 85 of the RTA governs the way the Tribunal exercises its jurisdiction it provides: 1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
In a number of the determinations in this decision I have exercised s85(2) RTA by considering both the legal principles and the merits and justice of the case.

Are the tenancy premises unlawful residential premises?

The tenant claims that the premises were unlawful residential premises. Section 78A RTA says: This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, unlawful residential premises. (2) For the purposes of this Act, 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 (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. 3 See s 78(2B) RTA.
The tenant says that the tenancy premises (the area he exclusively occupied) was never lawfully permitted or consented residential premises and was not consented as a separate dwelling.
When the house was first built in 1968, the downstairs portion of the home was a carport. Entry to the upstairs dwelling was via external stairs.
At some point between 1968 and 1999 the downstairs carport was converted into living space, with internal doors. This meant that the house could be entered via a door on the bottom floor and there are internal stairs which link both spaces.
The landlord purchased the house with her husband in 2017, she tells me that the conversion of the downstairs into the current layout had already taken place and that the only work that has been done by her and husband whilst they have owned the property is redecoration including: a. Painting the walls. b. New flooring c. Installation of the rangehood in the kitchenette (installed in or around 2023) d. Addition of heat pump (installed in 2026)
When a party claims that the premises are unlawful residential premises then they have the burden of proving their claim. The RTA makes it clear that the Tribunal does not have to inquire into the lawfulness or otherwise of a residential tenancy. 4 As set out in the paragraphs above, on the burden of proof, the Tribunal is not required to make its own investigations.
The tenant obtained a LIM report for the premises which was provided in evidence. The LIM report notes under the heading Buildings. a. A permit A 846 issued on the 7 August 1968 for the building of the dwelling and garage. b. That an application AB 355/21 as built – conversion of existing carport to room and staircase added 19 July 1999.
There is also a letter on the file from [Council] to the landowner dated he 17 August 1999 which is headed as “Unauthorised work at 21 [redacted street address] - conversion of existing carport to rooms and staircase added” It says – “ I am in receipt of your ‘as built’ plans for the unauthorised works at the above address. 4 S78A(2C) Council is unable to issue a retrospective Building Consent under the Building Act 1991, however we are able to register the work in our property information records. An inspection of the work by Council staff has indicated that it appears neither dangerous or insanitary, and provided that it remains that way we propose to take no legal action over this matter. A copy of the plan and this letter will be placed on Council’s microfilm records in order that any future owners may be aware of the situation.”
The tenant wrote to the Council on the 3 April 2026 seeking clarification on three issues:
Whether AB355/21 constitutes a Building Consent, Code of Compliance certificate or Certificate of Acceptance or whether it is an as- built site record for documenting unconsented works;
Whether any Building Consent, Code of the Compliance, Certificate of Acceptance or Change of Use approval has ever been issued by [the Council] or any predecessor Council for the conversion of the lower level of this property from a carport to habitable rooms?
Whether note 1 applied to AB355/21 in the LIM- stating “permit issued prior to the Building Act 1991 taking effect” is correctly applied to a record dated 19 July 1999, given that the Building Act 1991 commenced 1 July 1992.
On the 9 April Council responded saying: a. Q1 That work presumably commenced in the 1968 to 1991 period prior to the Building Act 1991 and an inspection of the work by council staff indicated that it appeared to be neither dangerous nor insanitary. Hence, Council proposed to take no legal action over this matter. The permit AB355/21 should be read in conjunction with the permit A 846 issued for the construction of a new dwelling. Both permits were issued for the works commenced prior to the Building CCC 1991 taking effect and did not require either a Building Consent or a CCC. b. Q2 The conversion of existing carport to room had been recorded under the permit AB355/21. c. Yes, the LIM note 1 – “permit issued prior to the Building Act 1991 taking effect Code Compliance Certificates CCC’s were not required is correct because the permit AB355/21 was created in 1999 just to register the unauthorised work commenced back in the 1968 to 1991period: thus Council was unable to issue a retrospective Building Consent under the Building Act 1991.
The tenant says that the premises cannot lawfully be rented out as a separate dwelling because: a. The premises were not lawfully permitted at the date of construction. b. That the safe and sanitary certificate (letter from Council dated 17 August 1999) does not give retrospective permission for the construction work. c. That the letter should have put any potential buyers on notice that the downstairs area had not been permitted and that it would be prudent of any landlord renting out premises to ensure that they were legally able to be rented out as separate premises. d. It is likely that the landlord has changed use of the property- (sections 114 and 115 Building Act 2004). e. The landlord was not paying rates for two separate dwellings and that the property only had one lot of rubbish and recycling bins. f. That the closing of the internal doorway between the tenant’s premises and the upstairs premises occupied by the landlord, would have meant that the tenant did not have two methods of egress in a fire.
Having considered all the evidence provided by the parties I am not satisfied that the tenant has proven, on the balance of probabilities, that the premises are unlawful residential premises, I say this for the following reasons: a. The premises were permitted for residential use when built in 1968. b. An as built permit AB 355/21 has been issued for the carport conversion into residential room and staircase to incorporate it into the house. This indicates that the property and the rooms were permitted for residential use when that permit were issued. There was no evidence on the LIM report that is contradictory to that. c. Council have taken the view that it is likely that the conversion and build occurred before the 1991 Building Act came into force. d. The tenant did not submit any evidence (other than his own unqualified opinion) that a certificate of acceptance, or a code of compliance would be necessary for work completed before the inception of the Building Act 1991. e. The zoning of the property in the LIM is for ‘Mixed housing suburban zone” this means that the buildings are expected to be used for housing. f. It is not enough to suspect the premises are unlawful, nor is it enough for an unqualified person to say it is so. 5 These types of claims usually require a building inspector or a suitably qualified person to give evidence to explain to the Tribunal why the premises cannot be lawfully rented for residential purposes. 5 In King and Yushkova v Greene and Greene [2021] NZDC 23637, the Court overturned a decision by the Tribunal that the insulation was not compliant, saying that photographs taken through a manhole were insufficient to reach a conclusion that the insulation was non-compliant and that no inspection of the insulation was done and no report by a qualified person. (see paragraphs 25-28 of the decision). g. In this case the tenant did not call as a witness a building inspector or anyone from Council to give evidence; there was no inspection of the property by Council, there has been no notice to fix issued or other compliance requirement by Council. Council’s response of the 9 April says that as the conversion work occurred before the commencement of the Building Act 1991, and it has been inspected and found to be safe and sanitary that there is no further action that can be taken by the owners or any other potential owners. It appears that Council are saying that the rooms are permitted via the application AB 355/21 6 . h. The landlord says that she was unaware of the issues with the downstairs conversion, she could not recall if she got a LIM when purchasing the property – she brought at auction, and it is possible that she was given documents by the vendor that included a LIM. She says that she did not know that the downstairs had not been permitted at the time of construction. She says that she has made no structural modifications apart from the installation of a rangehood in the kitchenette to the downstairs area. There was no evidence that showed me that the landlord knew of any issue with the premises and disregarded those issues. The tenant says that the landlord’s failure to produce documents should allow the Tribunal to make an inference that she has not given evidence because she has ‘something to hide’. I disagree, the Courts have made it clear that the onus is on the party who brings the claim to reach each the evidential burden to prove it. i. I cannot determine it is more likely than not that the use of the downstairs as a separate dwelling constitutes a change of use under s 114 and 115 of the Building Act 2004 as there was no evidence given by a suitably qualified person on this point. Neither was any evidence given by a suitably qualified person on what the landlord ‘did’ pursuant to s36 or s45(1)(c) that caused or contributed to the claimed change of use.
A determination by the Tribunal that the tenant has failed to prove on the balance of probabilities that premise was unlawful residential premise, does not mean that in fact the premises are lawfully able to be rented as residential premises. The landlord, who is now clearly on notice that there may be a defect in her ability to rent out the premises and their lawful status should ensure that before she rents out the downstairs again as a separate dwelling, she should take all steps to confirm that she is able to do so, including seeking advice from Council.
The tenant’s claim that the tenancy premises were unlawful residential premises is not proven and therefore dismissed. 6 Note that in the evidence submitted by the tenant the ‘as built plans’ which are referenced do not appear to have been included.

Did the ventilation in the bathroom meet the Healthy Homes Standard?

The tenant’s bathroom has no windows and has a cinderblock wall to the exterior. There is an existing and functioning Manrose extractor fan installed in the bathroom. As the landlord says that they did not install the extractor fan it is likely to have been installed before 2017 when the landlord purchased the property. The relevant law
Section 23 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“The Regulations”) requires each tenancy premises to have mechanical ventilation in the bathroom.
The specific requirements are set out at 23(3) of the Regulations are: For a bathroom that has an extractor fan,— (a) the fan and all exhaust ducting must have a diameter of at least 120 mm; or (b) the fan and all exhaust ducting must have an exhaust capacity of at least 25 ℓ/s.
Clause 8(2) of schedule 1 transitional provisions of the Regulations does not require the bathroom ventilation to comply with regulation 23 (2) or (3) if I it was installed before 1 July 2019. The parties’ submissions.
The tenant does not dispute that there is mechanical ventilation in the bathroom, but says: a. That the mechanical ventilation does not meet the requirements of The Regulations because it does not have a flow rate of 25 l/sec and does not measure 120mm in diameter. b. The extractor fan is only 100ml in diameter. c. That the flow rate is likely to be at most 23lt/s, 7 but is more likely to be 16- 18ltr/s depending on how the extractor fan has been ducted. 8 d. That even if the landlord was exempted from having to meet the requirement of regulation 23(3), that the landlord has failed to ensure that the bathroom ventilation extraction fan is appropriate for the purpose for which it was installed or provided (regulation 6(2)(c)) and was in good working order (Regulation 6(2)(d)). e. That the Healthy Homes Assessor did not test the bathroom ventilation. 7 Applicant’s submissions- page 2 claim 3 , and page 11 claim3 – exhibit C6 Manrose catalogue. 8 The tenant submits that he has not been able to verify how the extractor fan has been ducted and therefore cannot calculate the likely flow rate. f. That when he left the extractor fan on for long periods to try to extract the moisture that the landlord complained and sent him texts asking him to turn it off. The tenant submits that this showed that the landlord was aware that the tenant was having to run the mechanical ventilation for long periods of time. g. That the fan was clogged with dirt and dust and did not work well. h. That the inadequacy of the extractor fan allowed mould growing in the bathroom and other areas in the unit. i. That the tenant had to purchase a dehumidifier, and this extracted a lot of moisture from the air. He says that he had to regularly empty the catchment container. j. He says that he would run the dehumidifier after showers or in periods of humidity. The compressor would stop running when humidity got to 50 %. The tenant said on the days that he ran it he would need to close the windows and empty the dehumidifier bucket which had a capacity of 6ltr would be ¾ full or 4-5 litres.
The landlord says: a. That the fan was installed before the landlord purchased the house, and as an existing extraction fan, it does not need to be replaced. It is working well. b. That the tenant did not complain about the extraction fan not working properly or needing cleaning or not being powerful enough before bringing this claim. c. That the fan is ducted outside. d. That there are plenty of windows in the rest of the unit and that the tenant did not keep the windows open (as he stated at the hearing), but rather would leave his curtains drawn and windows closed for long periods of time and that this is what has likely caused high humidity, and or mould growth. Decision
I am not satisfied that the landlord has breached the s45(1)(bb) - Healthy Homes ventilation standard for the following reasons: a. There is existing mechanical ventilation in the bathroom that is functional. b. There was no evidence of what the actual flow rate is for this extractor fan, the tenant provided evidence to show similar models had a flow rate of, but that is not evidence of what this extractor fan’s flow rate is. The tenant has the obligation of proving this claim and could have measured the flow rate. c. Whilst the fan does not meet the requirements of Regulation 23(3) as it is not 120ml in diameter. I consider that it is was likely that the extractor fan was installed before the landlord purchased the property in 2017, and therefore clause 8(2) of schedule 1 of the Regulations applies. d. I consider that the fan was in good working order and appropriate. It was working, the tenant did not complain about it until filing these claims. e. Whilst the healthy homes inspector did not test the bathroom extractor fan, the tenant accepted that it was in place and working and there was no evidence given of the actual flow rate. f. The existence of high humidity, and mould is not necessarily attributable to way the extraction fan worked. Many [City] homes have issues with humidity, dampness and mould. Factors that might affect how much moisture that is in the air include both the design of the house, how it functions and the way you live in your home. It may include how long the showers you take are, what cooking you do, how you dry your clothes and towels, how often you open windows and curtains, how long you leave the extractor fan on, whether you run dehumidifier, what regular cleaning you do and how you heat your home. I say that not to make any criticism or comment on the way that the tenant lived in the home. It appears from his evidence that he took precautions to prevent humidity by purchasing and using a dehumidifier.
The tenant’s claims that the landlord breached s45(1)(bb) RTA by failing to have adequate mechanical ventilation in the bathroom is not proven and therefore dismissed.

Did the landlord breach the Heating Standard?

Regulation 8 of the Regulations requires all the main living area in a premises to have a qualifying heater.
It is not disputed that the landlord was in breach of the heating Healthy Homes Standards, as she did not have a heat pump or other heating source in the main living area.
The landlord says that this is because she believed that the tenant was her flatmate not her tenant and therefore, she was not required to comply with the Healthy Homes Standards.
She also says that she offered the tenant a heater but that the tenant told her that he already had one. She says that she paid for the heating, as it was part of the electricity, and so the tenant did not suffer any loss.
I am satisfied that the landlord was in breach of her obligations to meet the heating standard, (s45(1)(bb) RTA) because she did not have an heat pump or other qualifying heating installed.
The tenant seeks both compensation and exemplary damages for this breach.
Compensatory damages restore a party to the position that they would have been in had the breach not occurred.
The tenant did not pay for the electricity use for his heater, but did pay an extra $10 per week for 16 weeks over winter for additional heating costs. The tenant also says that he had to supply his own heater and had to purchase a duvet inner to keep himself warm.
I do not consider that the tenant has suffered a direct economic loss from this breach, as the failure to comply with the heating requirements did not result in the tenant having to purchase an alternative heat source. The tenant already owned a heater, and the purchase of the extra duvet was a matter of the tenant’s comfort and choice. The tenant still has those items, so still retains the value of them. I also note that the tenant told the landlord in a text message on the 17 January 2026 at 8.14pm that he didn’t own or use a heater. 9
The tenant also seeks exemplary damages for this breach at the maximum amount of $7200.00.
A breach of s45(1)(bb) RTA can give rise to an award of exemplary damages under s45(1A) RTA if the Tribunal considers that the landlord acted intentionally.
However before considering the breach, the Tribunal must determine if there are any other breaches of s45(1)(a-ca), this is because the Court has held that only one amount of exemplary damages up to $7200 can be given under s45(1A)- which covers all of the claimed breaches in s45(1)(a-ca). 10 Therefore, I will determine what if any exemplary damages should be awarded after determining all the tenant’s claims under those particular sections. Smoke Alarms.
There was one smoke alarm installed in the tenant’s premises. This was inside the tenant’s bedroom. The smoke alarm installed was a Fire Smart Model FS946.
Section 45(1)(ba) RTA requires and landlord to comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A; and
Regulation 7 of the Residential Tenancies (smoke alarms and insulation) Regulations 2016 requires the premises to have at least one qualifying smoke alarm, that must be placed within 3 meters of a bedroom. Definition of qualifying smoke alarm (1) A qualifying smoke alarm is a smoke alarm that meets the following requirements: 9 See text message at8.14pm, page 6 of We Chat log. 10 MBIE v Hillis Shearing Limited [2024] NZDC 27583, para 21. (a) the alarm must be fully operational and otherwise in full working order, with no faults, defects, or damage: (b) the alarm must be installed at a location that accords with the manufacturer’s instructions for the alarm: (c) the alarm’s recommended replacement date must not have passed: (d) unless the alarm is a hard-wired alarm,— (i) the alarm’s recommended replacement date must be displayed on the alarm: (ii) the alarm must be a photoelectric alarm: (iii) the manufacturer’s instructions for the alarm must include a certification, or other statement, to the effect that the alarm has been manufactured in accordance with— (A) AS 3786—1993; or (B) an equivalent smoke alarm standard specified in the certification or other statement.
The tenant submits that the smoke alarm in his bedroom did not meet the regulations because: a) The FS 946 is an ionisation smoke alarm not a photoelectric smoke alarm. b) The expiry date printed on the unit is 15 July 2016. c) That while the smoke alarm appeared to work (it beeped when tested) the fact that it is 9 years past its expiry, and therefore 19 years post manufacture, it has likely degraded and should not be trusted to function as it should in a fire.
The landlord submitted that the smoke alarm was functional, and the date of the 15 July 2016 is the date of manufacture not the expiry date.
I am satisfied that the landlord was in breach of the landlord’s obligation to install a qualifying smoke alarm because: a. The smoke alarm was an ionisation alarm not photogenic. b. I consider that the date on the alarm was more than likely the expiry date rather than the manufacture date, I say this because regulation 7(1)(d)(i) requires the expiry date to be recorded, not the date of manufacture. There is no other date on the smoke alarm. Exemplary damages for breaches of s45(1A).
I have found that the landlord breached s45(1)(bb) by failing to install a qualifying heater and s45(1)(ba) by failing to install a qualifying smoke alarm.
These breaches are also unlawful acts pursuant to s45(1A) RTA, to which a maximum amount of exemplary damages of $7200 can be awarded.
The landlord submits that no exemplary damages should be awarded because the landlord did not intentionally commit the breaches, as the landlord genuinely believed that they had a flatmate agreement not a residential tenancy.
This argument is often encountered by the Tribunal and the Courts. The party who is in breach will say that they cannot be said to have intentionally committed a breach (and therefore should not pay any exemplary damages) because they did not know of the law or did not think that the law was applicable to them.
The District Court has considered the meaning of intentionally in several decisions which refer to this excerpt from a Tribunal decision. “The Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act, evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it [emphasis added].” 11
This phrase, on the face of it, requires an offending party to deliberately set about to breach the Act. But that is not how later decisions on appeal to the District Court have interpreted that statement. The District Court 12 addressed how intention should be addressed when a party claims ignorance of the law 13 it said: “The obligation to provide these documents are fundamental obligations of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.” 14
In Rawstone v Westside Management Limited T/A Quinovic 15 the District Court had to address whether the landlord had acted intentionally when discriminating against a tenant on the basis of her pregnancy. The landlord argued that it had genuine mistaken belief that it was entitled to act in the manner it had and therefore could not be held to have acted intentionally. The District Court disagreed and said (having referred to the High Court’s decision in Noble v Simons [2019] NZHC 3242) Quinovic’s mistaken belief was irrelevant. The Court found that Quinovic had unlawfully discriminated against the tenant due to 11 Edmondson v Walls North Shore [1993] NZTT, 548/92, 29 June 1993 at para [38] 12 TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 13 This breach was for a failure to provide statements in the tenancy agreement. The court held that this obligation was a statutory duty which required strict compliance. 14 TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 [37] 15 Rawstone v Westside Management Limited T/A Quinovic [2021] NZDC 14114. her pregnancy. Quinovic had a legal duty not to discriminate and ignorance of the law or a mistaken belief was no excuse.
I am satisfied that the landlord committed a breach of s45(1)(bb)- failing to provide a qualifying heater and s45(1)(ba) failure to provide a qualifying smoke alarm intentionally because it is the landlord’s responsibility to ensure that they meet these strict requirements in the Act. if the landlord was unsure as to the legal status of the tenancy (flatmates or tenant) then they should have taken some advice on that or asked the Tribunal, not just relied on their own understanding. Like the case of Quinovic the landlord had a legal duty to provide heat sources and qualifying smoke alarms and ignorance of the law, and a mistaken belief were no excuse.
I award the tenant $2000 in exemplary damages for these breaches; in coming to this award I have taken the following into consideration: a. That the tenant paid extra for electricity over the winter months for ‘heating’ this should have alerted the landlord to the fact that the tenant was paying for heating when no heater had been provided. b. That the tenant reported the property was cold. c. The tenant reported he had not used his heater. d. That the smoke alarm appeared to be still functioning. e. That if the smoke alarm had malfunctioned it could have had catastrophic consequences. f. That the tenant did not raise these breaches with the landlord until this claim. g. That there is a public interest in ensuring strict compliance with the Healthy Homes standards and with the smoke alarms, and that when landlords are found to be in breach that there should be an award made that acts as a deterrent. h. This award is at the lower end of the spectrum, there is two breaches of s45 and the landlord has no previous history of other breaches. This award is commensurate with other awards made by the Tribunal for similar breaches. Did the landlord breach provisions of the RTA by charging for guests and electricity?
There is no dispute that the original flatmate agreement that the tenant and the landlord entered into provided that the tenant would pay an extra $10 per week for any week when a guest stayed at the tenancy premises for more than 3 nights.
The tenant would self-disclose when he had his partner stay at the premises and paid $60.00 over the tenancy for the times his partner stayed more than 3 nights in one week.
The tenant says that after May 2025 (the final surcharge paid) the tenant curtailed his partner’s visits, limiting stays to avoid incurring further cost.
The tenant submits that the landlord has breached s 17 RTA (Key money) and has breached his quiet enjoyment (section 38) by monitoring his visitors’ movements.
The tenant seeks a refund of the $60.00 paid for the guest surcharge and exemplary damages of $1500.00.
Section 11 of the RTA provides: Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
Normally a tenant would not be required to pay extra for visitors to his property in a tenancy. In that respect the requirement for him to report to the landlord when he had visitors to the property and to make payment for them, is a provision that is inconsistent with the Act.
However, in this case, I am satisfied pursuant to s11(1)(b) that it is appropriate that the inconsistency, of requiring the tenant to pay extra when he had guests to stay should be permitted, my reasons include: a. At the time the parties both were under the mistaken belief that the arrangement was a flatmate arrangement, and as such extra charges for guests were permissible. b. That the payment of the guest surcharge was part of the bargain between the parties. c. The guest surcharge was modest and was designed to cover the additional power usage and water usage by the tenant, which was being paid for by the landlord. d. The surcharge was self-reported. The landlord did not monitor the surcharge. e. That the tenant did not complain about the surcharge for a year, and only once other complaints occurred.
I do not consider that the request and payment of the guest payment was in these circumstances a breach of the tenant’s quiet enjoyment or a breach of s17. I say that for the following reasons: a. At the time that the parties negotiated the agreement, there both were under a misunderstanding as to the nature of their tenancy and both willingly agreed to this term. b. I do not consider that the tenant’s offer to pay if his partner stayed more than 3 nights in a week was a payment to grant the tenancy, it was merely in recognition that the rent included the utilities and that if he had extra occupants this would ensure that the landlord would not bear a greater burden. c. I do not accept that the guest surcharge interfered with the tenant’s use of the premises, the tenant submits that he stayed with his partner more and that it prevented his partner from staying with him, but he did not raise this with the landlord for a year, did not seek to negotiate that clause and willingly made such payments.
The tenant also claims that the landlord increased the rent during the tenancy to cover additional costs of electricity.
On 30 June 2025 the tenant made a one-off payment of $10 to the landlord to cover additional electricity costs. This payment was made after the landlord sent the tenant a screen shot showing increased energy bills. From the 7 July to the 13 October the tenant paid an extra $10 per week (15 weeks) for the extra electricity used over winter. There is no written correspondence showing that the landlord asked the tenant for this amount. However, in a subsequent text message on the 17 January the landlord refers to these payments and says about the costs of extra heating and dehumidying in winter “which is why I charged an extra $10 per week in winter”.
On the 17 January 2026 the landlord sought to increase the rent saying in a text “I forgot to remind you starting from this week, January 17 th the rent will change from $300 to $320.” The tenant at first counter offered to pay $305.00 per week and the landlord countered: “So would this work, if the electricity bill doesn’t exceed the limit by too much we can stay at $305 per week with an additional $10.00 per week for winter heating costs for the three months of July, August and September. Does that work for you” (sic) The tenant replied 7 minutes later by text: “I am actually very thankful, that is fine and it is not a problem. Then just remined me when winter comes and I will change the automatic bank transfer to $315 per week.”
The following day the landlord queried why the rent paid was only $300 not $305.00 as agreed. It was at this point that the tenant raised the argument that the landlord had previously raised the rent (by seeking the additional payment in July) and therefore could not increase the rent again in January. This was the genesis of the dispute and what led to the breakdown in the relationship between the parties.
There are two questions to be answered: a. What is the nature of the payments made by the tenant between June and

October 2025?

b. Was the landlord entitled to increase the rent? What is the nature of the payments made by the tenant between June and October 2025?

I do not consider that the payments were for rent as such because they were not payments made in consideration of possession but rather payments offered by the tenant for the increased costs of electricity. As such they are entirely consistent with s39 of the Act, which requires a tenant to pay for their use of the electricity. I do not consider that the landlord was in breach of s11 RTA by accepting these payments and is therefore not liable for their return.

Was the landlord entitled to increase the rent from 18 January 2025?

The tenancy was 12 months old at this stage and therefore the landlord was entitled to increase rent. 16 Whilst the landlord did not follow the procedures in the Act for giving notice 17 , I am satisfied that the tenant agreed to the rent increase, by accepting the landlord’s counteroffer at 8.32pm on the 17 January 2026.
I consider that the requirements in s24 RTA should be applied strictly. I say this because the wording of section uses the mandatory words of ‘shall’ not may, and provides that only if the landlord follows the requirements that the rent can increase.
The rent increase requested by the landlord was invalid in that it did not comply with the requirements in s24(1)(c) RTA but as the tenant never paid any increase rent, then he did not suffer any loss and therefore no compensation is ordered.
The landlord’s claim that the tenant is liable for the increased rent is not proven as the notice to give the rent increase was invalid. 16 See s24(1)(d) RTA 17 The notice did not comply with s24(1)(c) because it was not given 60 days before the notice was to take effect. Did the landlord fail to provide a written tenancy agreement and complete statements in respect of the compliance level of Healthy Homes?
The tenant claims the landlord failed to provide a written tenancy agreement and complete statements in respect of the compliance level of the Healthy Homes Standards. (s13 RTA). The tenant seeks exemplary damages in respect of these claims.
Section 13 RTA requires that the tenancy agreement is to be in writing and is to contain certain information s13(3) RTA.
The tenant says that a flatmate agreement is not a ‘tenancy’ agreement. I disagree, the purpose of s13 RTA is to require the landlord to have a written account of what the parties agreed to. The flatmate agreement, whilst wrong in its description of the tenancy, still records the minimum details as required in s13A(1) RTA except for the list of chattels included in the tenancy.
The landlord has not breached s13 by failing to provide a written tenancy agreement.
The landlord does not dispute that it failed to provide statements on the level of the compliance pursuant to s13A (1A) or (1CA) RTA.
The tenant says that “the landlord’s failure to provide healthy homes statements meant that he had ‘no basis in which to assess the premises’ compliance with the healthy homes standards prior to or during the tenancy.” 18
The landlord says that it was unaware of its obligation to provide these documents and did not provide them because it understood that the relationship that it had with the tenant was a flatmate relationship not a tenancy.
I find that the landlord breached s13A (1CA) as the tenancy agreement did not have any statements showing the level of compliance.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 of breaches of s13(1CA).
As discussed in the paragraphs above, in the case of TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 , the Court had to consider whether Mr Hu had breached s13A RTA , Mr Hu argued that he could not be said to have intended to break a law he did not know existed. The Judge said. “Like all citizens, corporate or otherwise, he [the landlord] and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly 18 Claim 7 page 1 of the tenant’s submissions. seen as intentional. Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
The Court ruled that Mr Hu pay $200 in exemplary damages for a breach of s13A RTA.
I am satisfied that the landlord, like Mr Hu, was in breach of her obligation to provide these documents.
I consider that the level of award should reflect that tenant did not have any complaints about the condition of the property until the dispute arose a year after the tenancy started, and that after the Tribunal determined that this was a separate residential tenancy, the landlord acted quickly in having a Healthy Homes assessment completed to ensure compliance.
I make an award of $200 exemplary damages for the breach of s13A. Did the landlord breach s137 (Prohibited transactions) by having the tenant sign a flatmate agreement not a tenancy agreement?
The tenant claims that the landlord breached s137 RTA by having him sign the flat sharing agreement knowing the agreement did not accurately reflect the true nature of the parties’ relationship as landlord and tenant.
He says: The respondent has selected and used a template whose stated purpose was to place the arrangement outside the protections of the Act. 19
Section 137 RTA says: (1) No person shall: (a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act. (2) Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act.
Whilst I consider that the landlord and tenants entered into the flat sharing agreement, and that there are parts of the flat share agreement that are inconsistent with the Act, (such as the provision to have disputes determined by 19 Claim 8, page 1 of the tenant’s submission. the Disputes Tribunal). I do not consider it is appropriate to consider s137 RTA in this case, because: a. Both parties have entered into the flat sharing agreement, and I do not consider that there was any imbalance of bargaining power or knowledge. If the landlord has breached of s137 by entering into the flat sharing agreement, then it stands to reason the tenant is just as culpable because he entered the same agreement. b. Having heard all the evidence I do not consider that landlord selected the flat sharing agreement to evade the provisions of the Act, she simply had a genuine but mistaken belief as to the type of arrangement she had. c. The selection of the template is not determinative of the jurisdiction. This case is proof of that.
I do not consider that there can be any breach of s137(2) RTA because I do not consider that the landlord required the tenant to enter into the agreement. To require someone to do something means that is necessary, essential or compulsory.
To be successful the tenant would have to show that he had little to no choice but to enter into the agreement, but that was not the case. The tenant did not challenge the flat sharing agreement, despite having been both a tenant and a flatmate before.
Tenants are expected to do their own due diligence before entering contractual arrangements and satisfy themselves that the agreement that they are signing correctly reflects the terms and conditions they have agreed to.
I also note that any part of the tenancy agreement which is inconsistent with the provisions of the Act can be dealt with under the specific provisions or s11 RTA as well.
The tenants claims that the landlord breached s137 is not proven and therefore dismissed. Did the landlord breach the tenant’s quite enjoyment?
The tenant claims that the landlord breached his quiet enjoyment in the following ways: a. Imposing a condition that the landlord pay extra for guests. b. Monitoring of the tenant’s activities c. Pattern of financial control over ordinary residential use.
I have already determined the landlord was not in breach of the tenant’s quiet enjoyment by agreeing to payment for extra guests.
The tenant says that the landlord monitored his guests, his extractor fan and dehumidifier use and his electricity use. He says that this is evident in the We chat log and also says that the landlord talked about it with him.
The tenant’s submissions detail how he considers that the landlord has ‘monitored him and his guests.’
I am not satisfied that the landlord breached the tenant’s quiet enjoyment. My reasons include: a. The tenant never raised any concerns about monitoring of his actions with the landlord during the tenancy. In fact he says in the We chat log on the 17 January at 8.14pm that “ I really enjoy living here and appreciate having you as a landlord. I’d love to stay long term.” This statement is at odds with the tenant’s later description of his landlord whom he characterises as constantly monitoring and watching him. b. The landlord denies watching or monitoring the tenant. She says that she never monitored his guests or who came or went from his flat. She said that she simply commented on the tenant’s leaving the ventilation fan on or an appliance on as she was paying for the electricity. She points to the we chat logs that do not show constant texts, just an occasional text, and that tenant does not seem concerned by those texts. c. My impression of the landlord at the hearings was that she was trying to be mindful of the tenant’s privacy. She says she tried to avoid walking past his windows, and did not comment on the way he was living in the flat, and did not do inspections. She says she was respectful and helpful towards him, recalling an occasion when she asked her husband to drive home from work to let the tenant in after he had locked his key inside and other times when she had received a courier package for him that needed signing.
The tenant’s claims for breach of his quiet enjoyment are not proven and therefore dismissed. Was the notice given by the landlord to end the tenancy on the 19 January retaliatory?
The tenant says that the landlord’s notice given on the 19 January to terminate the tenancy giving the tenant 30 days’ notice to end the tenancy was retaliatory.
The landlord says that the notice was given after the parties had a disagreement. She says that she then tried to resolve the matter in good faith by trying to discuss the issue with the tenant. She says that the notice was given because she believed the relationship had broken down to point that it was untenable for the tenant to live in the same house as her.
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice that complies with the requirements of s51 RTA to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power , authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The first question that must be determined is did the landlord’s notice meet the requirements of s51 RTA? The answer to that question is no, the notice purported to give only 30 days to end the tenancy. Landlords cannot given 30 days to end the tenancy; therefore the notice did not meet the requirements in section 51 and was invalid. An invalid notice cannot be retaliatory.
I comment that had the notice been valid, I would have found that the landlord’s notice was retaliatory as it was clearly given in response to the tenant questioning the landlord’s right to increase the rent and the nature of the agreement between the parties.
The tenant’s claim that the landlord breached s54RTA is not proven and therefore dismissed.

Is the tenant entitled to further costs?

The tenant is claiming the costs of the LIM report and the filing fee.
The Tribunal has a limited ability to award costs and disbursement fees in Tribunal proceedings. 20
Usually, the cost of obtaining a report would be granted if the applicant was successful in the claim that the report pertained to. As the Applicant tenant was not successful in the unlawful residential premises claim, then I do not award the tenant the cost of the LIM report.
The tenant has only been wholly successful in three out of nine claims. I do not consider that the threshold of success has been met for awarding reimbursement of the filing fee. Conclusion.
I have found that the tenant has been successful in the following claims: a. Breach of s45(1)(bb) – Failure to comply with heating standard b. Breach of s45(1)(ba) – Failure to install a qualifying smoke alarm. c. Breach of s13(1CA)- Failure to include Healthy Homes Statements in the tenancy agreement. 20 See s102 RTA.
I have made a factual finding that the landlord issued an invalid notice to end the tenancy and also an invalid notice to increase the rent.
The remaining tenants’ claims are not proven and therefore dismissed.
The landlord’s claim for rent owed is not proven as the rent increase notice was not correctly given under s24 RTA. The landlord’s claim is also dismissed.

Tenancy Tribunal case 5428879 — Smoke alarms

At a glance

Award balance

Tenancy Tribunal case 5428879 — Smoke alarms

At a glance

Award balance

Claims & awards

Order

Reasons

Are the tenancy premises unlawful residential premises?

Did the ventilation in the bathroom meet the Healthy Homes Standard?

Did the landlord breach the Heating Standard?

October 2025?

Was the landlord entitled to increase the rent from 18 January 2025?

Is the tenant entitled to further costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Claims & awards

Order

Reasons

Are the tenancy premises unlawful residential premises?

Did the ventilation in the bathroom meet the Healthy Homes Standard?

Did the landlord breach the Heating Standard?

October 2025?

Was the landlord entitled to increase the rent from 18 January 2025?

Is the tenant entitled to further costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.