What was the outcome of Tenancy Tribunal case 4495432?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4495432?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4495432?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4495432?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9348496-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4495432?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4495432?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4495432?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4495432?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9348496-Tribunal_Order.pdf.

Unit/Flat 202, 171 Queen Street, Auckland Central, Tenancy Tribunal Case 4495432 — Rent arrears

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Melanie Hannah must pay Onehome Property Management Limited As Agent For Gang Chen $3,114.29 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,280.00 (5875814-006) to Onehome Property Management Limited As Agent For Gang Chen immediately.

Reasons

This tenancy commenced on 9 November 2022 and ended on 8 May 2023.
Onehome Property Management Limited (“the landlord”) filed an application claiming rent arrears of $7,314.29, refund of the bond, and reimbursement of the filing fee, following the end of the tenancy.
Ms Hannah (“the tenant”) has filed a cross application seeking compensation of $8,320.00 and exemplary damages for the following: • The landlord failed to provide the premises in a reasonable state of cleanliness and repair, • The rent for the apartment exceeded market rent, • The landlord failed to provide a copy of the tenancy agreement, body corporate rules and healthy homes report, • The bond was not lodged within the required timeframe.
The tenant also claims a refund of the bond and reimbursement of the filing fee.
In general, the onus or burden of proving a particular claim rests with the party who is making that claim. The standard of proof, or level of evidence, required is “on the balance of probabilities”. In other words, the party proving the claim must establish with evidence that their claim is “more probable than not” or “more likely than not” correct. Compensation
Before compensation can be awarded a breach of the RTA or the tenancy agreement must be established.
Compensation, if any, is awarded on the evidence provided together with an assessment of the actual loss suffered or an actual cost recovery basis where that can be ascertained. In assessing loss, the Tribunal takes into account the reasonableness of the conduct of the parties. Exemplary damages
Exemplary damages are different from ordinary damages. Ordinary damages in the usual sense of the term, is to compensate. The object of exemplary damages is to punish and deter. The damages are exemplary because they are meant to teach an example to the guilty party. They are punitive because they are meant to punish.
To establish whether exemplary damages are appropriate in this case it must first establish that an unlawful act occurred. What constitutes an unlawful act is set out in each section of the RTA and summarised in schedule 1A.
The Tribunal can award exemplary damages up to stated maximums if the landlord or tenant intentionally committed an unlawful act listed in the RTA and it was just or fair to order a penalty, having regard to the tenant or landlord’s intent in doing the unlawful act; the effect of the unlawful act; the interests of the tenant or landlord and the public interest (section 109(3) RTA). The landlord’s application

How much is owed for rent?

The tenancy started on 9 November 2022 and ended on 8 May 2023. The landlord noted that the tenant had been given 1 week’s free rent due to cleaning issues at the start. The landlord provided rent records starting from 16 November 2022 to 8 May 2023 which prove the amount owing at the end of the tenancy.
The tenant explained that she did not pay rent as she wanted issues with the unit (which she discovered upon moving in) addressed and the landlord would not let her cancel the agreement.
A tenant must pay rent as and when it falls due (see section 40 of the Residential Tenancies Act 1986 (“RTA”)). The tenant is obliged to pay rent and cannot cease to pay rent because of various concerns with the unit. If the tenant considered the landlord was in breach of their obligations under the RTA, then the correct course of action open to her was to file an application to the Tenancy Tribunal. Even if the tenant had justifiable complaints about the condition of the premises, she was not entitled to withhold rent. The tenant’s application

Did the landlord provide the premises in a reasonable state of cleanliness and repair?

A landlord is required to provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises (section 45(1)(a) and (b) of the RTA. In addition, the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises (section 45(1)(c) RTA). The landlord also has obligations under s45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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 RTA. Cleanliness
The tenant claimed compensation for the unit not being provided in a reasonably clean and tidy condition. Upon arriving at the premises, the tenant says she was disappointed to discover it was not in an acceptable condition. She produced photographs showing the areas that were not clean. She gave evidence stating that at the start of the tenancy: • The rubbish bin still contained personal rubbish items such as tissues and toothbrush. • Used scented candles were left beside the bed. • The bathroom had hairs on the vanity and basin, a dirty toilet brush and plunger, unidentified drip marks on wall and door and towel rail, the shower head didn't work properly, and the shower tray filled with water as the drain was blocked. The toilet and shower were not cleaned. The bathroom floor had turned the bathmat brown. • All surfaces hadn't been wiped clean. • A vacuum cleaner left in the cupboard was full. • Some cutlery and drinking glasses and a plate were visibly filthy. • The walls and ceiling had a film of dark grey "dust" or soot. • The windows and sills were filthy. • The drapes smelled and were dirty to touch with mould on the underside. • The net curtains were grey and crunchy to touch also with mould. • The bed had an unpleasant aroma. • The fridge had frosted over with an enormous piece of ice making the fridge unusable. The motor was loud and very annoying
The tenant said she raised the cleaning issues with the landlord when she moved in which was only a couple hours after signing tenancy agreement and asked for a resolution, however, she felt “fobbed off” and “belittled”. She noted that the landlord would not allow her to cancel the agreement.
In response, the landlord denied that the premises were not clean. The landlord said the premises had been cleaned before the tenant moved in produced an invoice in support. However, they had offered the tenant to do further cleaning and gave the tenant the cleaner’s phone number. They note the tenant was not happy with the job done by the cleaner, so they offered the tenant 1 week’s free rent. While they regret the tenant’s experience, they believed they attended to the issue in a reasonable and timely manner.
The tenant said the cleaner was not able to attend to the issues until 2 days later and she felt she could not fully move in until this was done. However, as it turned out the tenant said the cleaner did not address any of her concerns and only did the vacuuming.
Based on the evidence that I have reviewed, I am satisfied that the landlord failed to provide the premises in a reasonable state of cleanliness. Cumulatively, the effect of needing further cleaning or attention would have been dispiriting to the tenant, expecting to move into her new home. I award the tenant two weeks’ rent totalling $640.00. I note the landlord has already deducted 1 weeks rent from the rent arears owing. Therefore, the tenant is awarded the remaining balance of compensation being $320.00
Failure to provide the premises in a reasonable state of cleanliness is an unlawful act under sections 45(1A) and 109 of the RTA. An award of exemplary damages may be made by the Tribunal. However, before such an award is made, the Tribunal must be satisfied that the failure was intentional. I am not satisfied that this was the case here. This is not a circumstance where I view it as appropriate to make an order for exemplary damages. The claim for exemplary damages is dismissed. Cooking facilities
The tenant claims that the premises were non-compliant with the Healthy Homes Standards and RTA as there were no cooking facilities.
The landlord was of the view that the RTA and the Building Act do not state that a residential property needs to supply cooking facilities. Furthermore, that the property was advertised as having no cooking facilities and the tenant was aware of this before she took possession of the property.
The landlord is incorrect regarding the need to supply cooking facilities.
Section 45(1)(c) RTA states that a landlord must comply with the healthy homes standards and comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. The Housing Improvement Regulations 1947 (“the HIR”) are applicable under the RTA.
The HIR set out the minimum standard of fitness for housing (section 4 HIR), enforced by local authorities.
Section 5 HIR states that any residential property to which these regulations apply shall have amongst other things a room that can be used as kitchen or kitchenette.
Section 7 HIR states that each kitchen or kitchenette must have a sink, tap, and a means to prepare food and to cook food, both by boiling and by baking food. In most accommodation arrangements, this will require a working oven that bakes and stovetop elements (or similar) to be considered adequate.
The landlord has an obligation to provide cooking facilities.
Failure by the landlord to comply with any provision under section 45 RTA is declared to be an unlawful act.
A landlord’s failure to meet their obligations in respect of the Healthy Homes’ Standard, or buildings, health and safety requirements face a maximum fine of up to $7,200.00. I am awarding the tenant $2,400 in exemplary damages. It is for the landlord to know their obligations, and a tenant cannot be said to have opted out of their rights by committing to a tenancy that is non-compliant. Laundry facilities
The tenant claims that the premises were non-compliant with the Healthy Homes Standards and RTA as there were no laundry facilities.
A residential property must have a space with plumbing for washing clothes if more than 2 people can live in the property. The landlord is not required to provide a washing machine and dryer.
In this case, there was no indication the premises was intended for 2 people to live in. This aspect of the tenant’s claim is dismissed. Did the landlord provide a copy of Tenancy Agreement including body corporate and healthy home information?
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See sections 13 and 13A RTA.
It is a requirement under section 13(1CA) RTA that a landlord include in the tenancy agreement a statement relating to requirement with the Healthy Homes Standards (HHS) as required by section 45(1)(bb) and including the information prescribed by regulations under section 138B(5).
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00, provided the landlord acted intentionally. See section 13A(1F)(a) and Schedule 1A RTA.
Under section 45(1AC) RTA, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
The tenant says the landlord failed upon request to provide a copy of the signed tenancy agreement, body corporate rules and healthy homes report upon request.
The agent for the landlord indicated that it was presumed this information would have been provided when the tenant was liaising with the initial property agent “Joanna” when signing the tenancy agreement on 9 November 2022. The agent stated that this was the standard process and was unable to state why this would not have occurred. The landlord produced a copy of the agreement signed by the tenant.
The agent did not recall receiving a request. If he had received a request, he acknowledged that it would have been obliged to provide a copy and would have no reason to withhold any such information if the request was indeed made.
In the circumstances, given the conflicting views and a lack of corroborating evidence, I do not find a breach of section 13 or section 45(1AC) has been made out. The claim is therefore dismissed.

Did the landlord lodge the bond within 23 working days?

The tenant claims the landlords did not lodge the bond with the Bond Centre within the required time.
A landlord must send any bond payment, or part of any bond payment, to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,000.00. See section 19(2) and Schedule 1A RTA.
The landlord conceded that the bond was not lodged within the required timeframe but considered this an oversight but not intentional. They considered there was no detriment to the tenant as the bond was eventually lodged.
The landlord knew their legal obligations in relation to the lodgement of the bond but failed to comply with the statutory requirements. In such circumstances, I can infer intent. There was an effect on the tenant by the bond not being lodged (worry and concern) and it was against the tenant’s interests.
Importantly too, there is a very strong public interest in landlords complying with their obligations, particularly in respect of bonds. Taking these factors into account, I consider nominal exemplary damages of $200.00 warranted.

Was the rent in excess market rent?

The tenant claims the landlord is seeking rent in excess of the market rent set by the Tenancy Tribunal.
Where the Tribunal has made a market rent order under section 25 of the Residential Tenancies Act 1986, the landlord cannot require the tenant to pay an amount in excess of that order. See section 27(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 $350.00. See section 27(2) and Schedule 1A RTA.
The jurisdiction of the Tribunal to review rent set for a rental property is limited to circumstances where the rent payable or to become payable exceeds the market rent by a substantial amount. See section 25(1) RTA.
Market rent is defined as the rent a “willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay” for the tenancy, taking into account the general level of rents for comparable premises in the locality or similar localities. The parties’ personal circumstances are not relevant and are not considered.
If granted, a market rent assessment cannot be backdated beyond the date of the application (section 25(4) RTA) and continues in force for a maximum period of 6 months (section 26(1)(a) RTA).
In this case, the tenant says the property was advertised as a fully furnished studio apartment, but it was actually a room and ensuite with no amenities on site. The nearest expensive laundromat was 4.2kms away. There were no cooking facilities or sink for washing dishes. There was no TV or internet. No drawers for clothes and no seating.
The tenant further stated that based on market rent as seen on the Tenancy Services website a room in Auckland Central is $180.00. The tenant sought an adjustment of $140.00 per week for the duration of her tenancy.
In response, the landlord indicated the rent was based on a professional rent appraisal from a local agent.
The tenant faces the difficulty of establishing a true comparison between the property in question and other tenancies and proving that rent exceeds market rent by a substantial amount. The tenant has not relied on any comparable properties.
Weighing all of the evidence in the balance, I find that that the tenant has not provided sufficient evidence to meet the evidential threshold of proving that the rent per week exceeds market rent by a substantial amount. As this aspect of the claim is not proven it must be dismissed. Filing fee
I decline to award a filing fee. Both parties were partly successful in their applications in which case their respective filing fees cancel each other out. Suppression order
Under section 95A(1) of the RTA, the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
While suppression orders have been requested, neither party has been wholly successful with their claims therefore they are not entitled to a suppression order and no suppression orders apply around publication of this decision.

Tenancy Tribunal case 4495432 — Rent arrears at Unit/Flat 202, 171 Queen Street, Auckland Central,

Tenancy Tribunal case 4495432 — Rent arrears at Unit/Flat 202, 171 Queen Street, Auckland Central,

Order

Reasons

How much is owed for rent?

Did the landlord provide the premises in a reasonable state of cleanliness and repair?

Did the landlord lodge the bond within 23 working days?

Was the rent in excess market rent?

Property management

Order

Reasons

How much is owed for rent?

Did the landlord provide the premises in a reasonable state of cleanliness and repair?

Did the landlord lodge the bond within 23 working days?

Was the rent in excess market rent?

Property management