Published tribunal order
Tenancy Tribunal case 5455212 — Exemplary damages at 30A Powell Street, Avondale, Auckland 1026
Decided 12 Jun 2026 · Published 12 Jun 2026 · Application 5455212
- 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 Tenants name and identifying details.
- The landlord is to pay the bond of $1,920.00 to [The tenant/s] immediately.
- Tao Zhang and Jian Zhang must pay [The tenant/s] $0.00 immediately for exemplary damages, reimbursement of the filing fee and refund of bond.
Reasons
- Both parties attended the hearing. This is a tenant application.
- The tenants have applied for refund of the bond, exemplary damages for the landlord’s breach of their quiet enjoyment, for interference with the heat pump/air conditioner, failure to lodge the bond within the specified time frame and reimbursement of the filing fee following the end of the tenancy. Background:
- This was a tenancy that commenced on 11 March 2023 and ended on 1 February 2026.
- The property was a two-storey home with the landlord and his family residing in the upstairs part of the house and the tenants residing in the downstairs part.
- The tenant’s unit was two-bedroom, one-bathroom, open space kitchen, dining, lounge, and laundry. The landlord and tenants did not share any facilities at all. The downstairs has its own entrance and exit away from the landlord’s entrance.
- The utilities, water, power, and Wi Fi were shared.
- The landlord claimed this was a flat sharing situation and not a tenancy and therefore the Residential Tenancies Act 1986 (RTA) does not apply. The tenants say this was a separate unit and was a tenancy and the RTA does apply.
- The first issue to be determined is whether this was a residential tenancy or a flat sharing situation and whether the RTA applies in these circumstances. Jurisdiction of Tribunal:
- A key issue in this matter is whether the arrangement between the parties constitutes a residential tenancy to which the RTA applies, or a flat sharing arrangement that would fall outside the Tribunal’s jurisdiction.
- Section 77(1) of the RTA provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the RTA applies.
- Section 4 confirms that the RTA applies to all residential tenancies unless specifically excluded. Under section 2(1), a “landlord” is the grantor of a tenancy under a tenancy agreement of residential premises, and a “tenant” is the grantee. A “tenancy” means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent.
- When determining whether an arrangement is a residential tenancy or a flat sharing situation, the Tribunal considers the substance of the agreement rather than the labels applied by the parties. Relevant factors include whether the occupants have exclusive possession of the premises, whether there is a tenancy agreement (written or oral), and whether rent is paid in exchange for the right to occupy the premises.
- In this case, the tenants occupy a completely self-contained unit within a two- storey house. They have their own entrance and exit, and there is no sharing of facilities such as kitchen, bathroom, or laundry with the landlord or any other occupants of the house. The landlord does not have access to or use of the tenants’ unit, and there is no mixing of the upstairs and downstairs areas. This arrangement is materially different from a flat sharing situation, where occupants typically share facilities and living spaces, and where the head tenant may have a different relationship with the landlord than the other occupants.
- The High Court in Harding v Schellevis, Tan and Caroto 1 , considered a similar situation and found that the relevant “premises” for the purposes of the RTA were the self-contained unit, not the entire dwelling. The Court emphasised that the statutory definition of “premises” includes “any part of any premises,” and that the right to occupy did not include any areas used by the landlord or their family.
- The self-contained nature of the unit was decisive in determining that the arrangement was a residential tenancy, not a flat sharing or boarding situation.
- Accordingly, where tenants have exclusive possession of a self-contained unit, with no shared facilities or living spaces with the landlord, the arrangement is properly characterised as a residential tenancy to which the RTA applies. The landlord’s claim that this is a flat sharing agreement is not supported by the facts or the law.
- For completeness I have determined that there was a residential tenancy, and the RTA applies in these circumstances. Landlord claiming deduction from bond:
- The landlord seeks to recover vacated costs from the tenants and to have these costs deducted from the bond.
- However, under section 22B of the RTA, if there is a dispute as to the payment of the bond, either party must file an application with the Tribunal for an order determining to whom the bond, or any part of it, is to be paid.
- As the landlord has not filed an application in this matter, the Tribunal does not have jurisdiction to consider or determine the landlord’s claim for vacated costs at this hearing.
- If the landlord wishes to pursue these costs, a separate application must be filed with the Tribunal so that the tenants have an opportunity to respond, and the matter can be properly considered. Until such an application is made, the Tribunal cannot make any order in relation to the landlord’s claim for vacated costs.
- Therefore, I am not giving any consideration to the landlords claims for the carpet cleaning, extra days rent and additional water bills. Tenants’ claims: Failure to Lodge bond:
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time. 1 Harding v Schellevis, Tan and Caroto [NZHC] 1265
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- There is no dispute that the landlord did not lodge the bond at any time during this tenancy. The landlord said the tenant’s bond is in his wife’s bank account. The landlord says that he was of the view that this was not a tenancy and so the obligations to lodge the bond did not apply.
- The landlord has admitted to retaining the bond in his wife’s bank account for the duration of the three-year tenancy, rather than lodging it with the Bond Centre as required by the RTA. The landlord claims this was a flat sharing arrangement and therefore not subject to the RTA’s bond lodgement requirements. However, as discussed above, the arrangement is properly characterised as a residential tenancy to which the RTA applies.
- Under section 19 of the RTA, any bond received by a landlord in respect of a residential tenancy must be lodged with the chief executive (Bond Centre) within 23 working days of receipt. This is a fundamental obligation designed to protect both landlords and tenants. The requirement to lodge the bond applies regardless of any private arrangements or advice received, and regardless of the landlord’s belief about the nature of the tenancy.
- If this were a genuine flat sharing arrangement (which it is not), there would be no requirement under the RTA to take or lodge a bond, as the RTA does not apply to flatmate relationships. However, once a landlord receives a bond in relation to a residential tenancy, the statutory obligations under the RTA are triggered.
- In summary, the landlord was required to lodge the bond with the Bond Centre under section 19 of the RTA. The failure to do so over a prolonged period, particularly by an experienced landlord, is a serious breach of the Act and not excused by a mistaken belief about the nature of the tenancy or advice received.
- I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord in this case is an experienced property owner with other rental properties and claims to have sought advice from a property manager. The failure to lodge the bond is not a mere technical breach, but a substantive and ongoing contravention of the RTA.
- Section 19(2) makes it clear that failure to comply with the bond lodgement requirements is an unlawful act, and the Tribunal may award exemplary damages in appropriate cases. The purpose of these provisions is to ensure transparency and security for tenants’ bond monies, and to prevent misuse or disputes over bond funds.
- I am awarding the tenants $250.00 in exemplary damages for the landlord’s breach.
- Breach of Quiet Enjoyment:
- [The tenant/s] claims the landlord has harassed them.
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The tenants claim that at the end of the tenancy the landlord breached their quiet enjoyment and harassed them. In particular they claim that the landlord rang them and emailed them continuously about the method of carpet cleaning they sought the tenants to use. The tenants say there was 10 times the landlord or his wife rang or tried to ring them between 1 – 8 February 2026, in addition to We Chat messages and text/emails.
- The landlord wanted a different professional cleaner to clean the carpets, other than the one the tenants had arranged and who was onsite. The landlord demanded that the cleaner stop and then pressured the tenants to use his preferred cleaning company and equipment. The tenants claim the landlord then threatened to take their bond money to cover the cost of the landlord’s carpet cleaner.
- The landlord also installed a camera on 1 February 2026 that was hanging out of their upstairs window and monitoring the tenants’ actions below.
- The landlord is adamant that his carpet cleaners were the correct ones to use and that the tenants had agreed to a professional carpet cleaner at the end of the tenancy. RTA obligations of tenants:
- The landlord claims that the tenants agreed to have the carpets professionally cleaned at the end of the tenancy. However, under section 40(1)(e)(iii) of the RTA, the tenant’s obligation at the end of the tenancy is to leave the premises in a “reasonably clean and reasonably tidy condition.”
- The RTA does not require tenants to have the carpets professionally cleaned unless this is necessary to meet the standard of reasonable cleanliness. A landlord cannot impose additional obligations on a tenant beyond what is required by the RTA.
- Any clause in a tenancy agreement that requires professional cleaning, regardless of the actual condition of the premises, is not enforceable. The correct standard is whether the premises, including the carpets, have been left in a reasonably clean and tidy condition, not whether professional cleaning has been undertaken. Findings on camera/BQE:
- The landlord says in regard to the camera they installed, that it was done on the last day of the tenancy and was focused on the deck below and not the tenant’s specific area.
- The landlord installed a camera to monitor the tenants on the last day of the tenancy. While this action is regrettable and may have caused some annoyance, I do not consider that it amounts to a breach of the tenants’ quiet enjoyment that would warrant an award of exemplary damages, particularly as it occurred only on the final day of the tenancy.
- Similarly, the dispute regarding carpet cleaning arose only at the end of the tenancy. Had there been ongoing issues of this nature throughout the tenancy, a different outcome may have been appropriate. In these circumstances, I am not satisfied that the landlord’s conduct justifies exemplary damages. Interference with services:
- [The tenant/s] claims the landlord has interfered with the services to the premises by not providing the heat pump/air-conditioning unit remote.
- A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 45(2A) and Schedule 1A Residential Tenancies Act 1986.
- Section 45(2) of the Act states that the landlord shall not interfere with the supply of gas, electricity, water, telephone services, or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. A contravention of this section is declared to be an unlawful act.
- In this situation, the rent agreement included water, power, and Wi-Fi, meaning the tenants were entitled to use these services as part of their tenancy. By refusing to provide the remote for the heat pump/air conditioner unless the tenants paid extra for power, the landlord was effectively restricting the tenants’ access to electricity for heating and cooling, which is part of the services included in the rent. This constitutes interference with the supply of services to the premises and is not permitted under section 45(2).
- The landlord considered that additional payment was required because of the usage of power for the heat pump/air conditioning unit.
- For completeness in addition to the claim of interfering with services, the landlord also had an obligation under the Healthy Homes Standards requirement for heating.
- The heating standard requires landlords to provide one or more ‘qualifying heaters,’ with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. The tenants had no heating in their unit as a result of the landlord withholding the remote.
- I find the landlord has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord has clearly breached the heating requirement under the RTA. The intent of the landlord was to require the tenants to incur further costs above the rental that they were paying.
- There can be no justification for interfering with the tenant’s access to heating in the property, particularly when there is a heat pump present, but the landlord has withheld the remote to enable the tenants to use the unit.
- I find that the tenants should be award exemplary damages of $600.00 for the landlord’s breach of his obligations under the RTA. Suppression/Filing Fee/ Bond:
- The Applicants sought suppression of their names and identifying details. As they have been successful, I am granting suppression of their name and details.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
- The landlord is to refund the full bond of $1920.00 to the tenants immediately.