What was the outcome of Tenancy Tribunal case 4546635?

The tribunal order states: Property Brokers Limited and Douglas Duncan must pay Christine Mary Corke

How much money was awarded in case 4546635?

Compensation: Failure To Maintain: $2,050.00 awarded to landlord; Compensation: Loss Of Amenity: $600.00 awarded to landlord; Compensation: Quiet Enjoyment: $1,000.00 awarded to landlord; Property Damage: $2,400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4546635?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4546635?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9585778-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4546635?

The tribunal order states: Property Brokers Limited and Douglas Duncan must pay Christine Mary Corke

How much money was awarded in case 4546635?

Compensation: Failure To Maintain: $2,050.00 awarded to landlord; Compensation: Loss Of Amenity: $600.00 awarded to landlord; Compensation: Quiet Enjoyment: $1,000.00 awarded to landlord; Property Damage: $2,400.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4546635?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4546635?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9585778-Tribunal_Order.pdf.

590 Jeffersons Line, Marton, RD 1, Marton 4787, Whare Tenancy Tribunal Case 4546635 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4546635. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: failure to maintain	$2,050.00	failure to maintain
Compensation: quiet enjoyment	$1,000.00	quiet enjoyment
Compensation: loss of amenity	$600.00	loss of amenity
Exemplary damages: Section 45(1)(c	$500.00	Section 45(1)(c
Exemplary damages: Section 45(1)(bb	$2,400.00	Section 45(1)(bb

Claims and awards in Tenancy Tribunal application 4546635. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: failure to maintain	$2,050.00	failure to maintain
Compensation: quiet enjoyment	$1,000.00	quiet enjoyment
Compensation: loss of amenity	$600.00	loss of amenity
Exemplary damages: Section 45(1)(c	$500.00	Section 45(1)(c
Exemplary damages: Section 45(1)(bb	$2,400.00	Section 45(1)(bb

Order

Property Brokers Limited and Douglas Duncan must pay Christine Mary Corke and Ateria Leslie Pile $6,570.44 immediately per the table below:
Douglas Duncan is to pay Christine Mary Corke and Ateria Leslie Pile $500.00 immediately, being exemplary damages for unlawful entry (Section 48(4)(a)).

Reasons

Both parties attended the hearing. An initial case conference was convened on 1 August 2023 via teleconference. That was attended by Ms Caroline Wind, representing the landlord, the tenants and their advocate, Ms Sherry Pedley.
Directions from that conference were made and it was apparent that the owner, Mr Douglas Duncan, should be joined as a second respondent. This was done.
By the time of the hearing, Mr Duncan was unwell and his son, Sam Duncan, attended as his representative. A written affidavit from the owner was provided.
The same parties appeared at the hearing as for the case conference, with the addition of Ms Kaycee Mitchell joining Ms Wind, and Mr Sam Duncan.
The tenants sought compensation and exemplary damages. An initial claim for $1000.00 refund of the tenant contribution for carpet damage was withdrawn as it had already been returned to them by the date of the hearing.
A party 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 tenants had some video evidence they wanted to show. During the lunch adjournment steps were underway to enable these to be viewed but before the hearing recommenced the tenants advised they now felt there was no need to view them.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background
The premises is in a rural area, alongside a working farm. It was previously the home of the owner’s family, and the home he grew up in. The farm is still farmed by the family. Both the premises and the grazing farm of some 240 hectares with 3000 stock units are supplied water via the Hunterville Water Scheme. A 50,000 litre water tank can supply both the premises and the farm.
More recently and just prior to this tenancy, the premises had been used as a service tenancy for a farm employee. That tenancy operated informally between the owner and the employee.
The owner engaged Property Brokers to act as his property manager for this tenancy. Ms Elisabeth Bunn was the commencement property manager for this tenancy until April 2023 when she moved to property sales. She did not appear or be called as a witness. Ms Caroline Wind was her manager and while not directly involved in the tenancy management until 2023, her name appears in some earlier communication and it is reasonable to assume she had some earlier knowledge of the tenancy and its operation.
The premises was advertised and this tenancy formed remotely as the tenants were living some distance away. The viewing between the tenants and Ms Bunn was via photo and video/voice. The tenancy commenced 29 July 2023 and ended 12 May 2023. This tenant application was lodged before the tenancy ended, on 9 April 2023. Some of the application became moot as the tenancy has concluded. The claims
The tenants claimed compensation of $20,000 in their application. This was refined at the hearing to general compensation of $6707.00, $1763.00 for bottled water purchased, $75.00 for pest control costs and the unspecified cost of a gas bottle after the hot water system was swapped from a cylinder to an Infinity instant hot water system.
Exemplary damages were also sought for failure to give notice, quiet enjoyment, failure to maintain/HHS, missing insurance statements in tenancy agreement, failure to provide a lock. Failure to maintain
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, comply with any relevant enactment in relation to buildings, health and safety, and provide an adequate means for the collection and storage of water if there is no reticulated supply
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. Maintenance
It is well settled that, the landlord’s obligation under s 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Section 45(1)(b) RTA requires some regard to the age and character of the premises vis-à-vis the maintenance of it.
The tenants claim that the landlord failed to ensure the premises were in reasonable condition at the start of the tenancy, and that it failed to remedy several repair issues within a reasonable timeframe. The tenants submitted that when they first took over the tenancy, the agent carried out an inspection, circling items on a property schedule that need attending to. They listed the circled items from that report as below (the text in brackets is their later comment): a. extractor fan above stove really dirty (has to be dismantled to clean - still hasn’t been done) b. ceilings well overdue for clean – (covered in fly shit) (still hasn’t been done) c. cracks in the ceiling by fire place (also in several places in other parts of the ceiling (never been attended to) d. stains on carpets in bedrooms, lounge and dining room (carpets were not cleaned – stains still there) e. floors stained (never been attended to) f. bathroom rail needs a new support – rail hanging loose. (still not done) g. date of fire extinguisher for legal use has expired by several years (never been attended to) h. paint cracking (never been attended to) i. wall paper peeling (never been attended to) j. curtains have black mould on them (never been replaced) k. blinds need washing (never been done) l. tree growing through power lines to be trimmed (been advised of this issue during tenancy and also in February of this year- now resolved) m. hedges overgrown. ( Tenants purchased a hedge cutter to trim and tidy up all hedges and ivy)
Beyond those, the report notes more than six separate areas that are “overdue a clean” or such.
The evidence, including a number of photos, support the claim that the landlord failed to present and maintain the premises. Grounds for appropriate compensation are established. In finding this, I consider a number of the issues to reflect a “tired” home rather than intentional neglect by the owner. Elsewhere the premises present well. Water
The water supply from the water scheme is consider potable. I heard of the occasional need for the scheme to stop supply for maintenance or repair purposes. A text-based alert system was available for forewarning of such stoppages.
The tenants claim the water was not fit to drink and they consumed bottled water in preference. Given the water supply as described to me, and the lack of any actual evidence of any illness due to the water supply, I do not find the compensation of $1,763.00 for purchased water has been proven as required due to any failing of the water supply. I do accept some disruption to the water supply as described occurred but these are considered a realty of such a supply. Some photos provided by the tenants showed water stored in bottles. Such mitigation would be reasonable expected.
The tenants raised concerns regarding the onsite water storage and potential contamination within. The tank does not appear fully sealed but beyond that, I have no evidence of a failure of the landlord to ensure a supply of potable water and I make no compensation order for water purchase costs incurred by the tenants.
I do not find it proven that Sam Duncan ever told the tenants the tenancy was ending due the premises being uninhabitable due to water quality or supply related issues. Swimming pool/pool house
The premises had an inground pool and a pool house. The tenants claim these were shown (virtually) as part of the remote pre-tenancy viewing and discussion. Both facilities are recorded in the ingoing condition report, as shown below, giving some credence to the tenants’ stance.
Whatever was or was not agreed regarding the pool and pool house at the commencement appears to have been modified later with the tenants accepting these were not intended to be used. I am not convinced that later acceptance was acknowledgment of prior exclusion for use by the landlord versus the reality at that later time.
With the tenancy commencing in July, it meant any real use of the swimming pool was unlikely until the warmer months. I heard from Mr Pile that he did try later to fill and use the pool but that was unsuccessful.
The tenants wanted a swimming pool, and given the existing pool was unusable they erected an above ground pool themselves. In a somewhat ironic turn of events, the landlord served a breach notice requiring this to be dismantled, concerned about owner liability if something happened as it did not have adequate fencing. The tenants claims it did not need any specific consent due to the size of it but they did remove it as instructed (message from the landlord below).
Beyond the use, or not, of the pool, the question of adequate fencing around it existed and it is acknowledged in the message above. It is not clear when it was first raised by the tenants with the landlord but they contacted the council on 27 February 2023. An inspection by the council on 6 March 2023 confirmed a number of noncompliance issues regarding access to the pool. These noncompliant areas appear to be reasonable apparent from photos provided and the council conclusion no surprise.
The pool house was a concern to the tenants with a significant rat issue that they managed. Later in the tenancy the landlord claimed someone was residing in the pool house. This was denied by the tenants who stated it was being used for storage only. Photos of the pool house show it is poor condition.
The swimming pool was later filled in and the pool house demolished.
I consider the failure to ensure the swimming pool was adequately fenced was a failure to comply with the relevant enactment, confirmed by the council upon inspection. The landlord committed an unlawful act. Failures relating to Healthy Homes Standards
The Tenancy Agreement contained the following signed statement:
No copy of the Property Management Agreement, if one was signed, was provided. I am unable to ascertain if the above statement was based on any assurance by the owner or from inspection. Ms Wind advised me the company has since enhanced their PMA to ascertain better a premises condition and compliance at formation. Insulation
The tenants claim the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
A separate technician visit to inspect the HRV system on 16 August 2022. This report does record some ceiling insulation is present.
The premises were not insulated to the required standard. It remained this way until 22 February 2023 when an installer attended. While the owner appears not to have appreciated it at that time, the prior service tenancy was also covered by the Residential Tenancies Act 1986 and compliance to the standard was required then.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The landlord failed to ensure the insulation was compliant. I find they have committed an unlawful act in not meeting the insulation standard until February 2023. Exemplary damages should be ordered. The biggest impact of that failure will have been felt during the 2022 winter. This statutory requirement has been in place since 2019 and should have been completed during the previous service tenancy.
The landlord committed an unlawful act. Ventilation
The tenant claims the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). They consider that the landlord has failed to comply with the HHS ventilation standard.
All private rentals, commencing at the date this did, must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
An electrical invoice and report in April 2023 noted the following deficiencies:
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
I consider the evidence establishes the failure of the landlord in meeting this standard. The landlord committed an unlawful act and exemplary damages are appropriate. The earlier removal of the HRV might have acted as a second prompt to the landlord to ensure the premises were made compliant well before 14 April 2023. The lack of ventilation should have been reasonably apparent. Heating
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). They consider that the landlord has failed to comply with the HHS heating standard.
All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
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. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances. There were no obvious exceptions here.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case I do not find an unlawful act has been proven. The premises living areas were described and the tenants have not provided sufficient detail on how the provided heating failed to meet the required standard for the main living room. The heating standard does not address the bedrooms, an area the tenants particularly noted as cold.
I make no orders regarding any failures to meet the HHS heating standard. Entry by the owner
The tenants claim the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The owner was present at the premises frequently. That in itself is not unexpected given the premises residing on the working farm and some shared infrastructure.
The issue of unlawful entry into the premises occurred early in the tenancy and involved Douglas Duncan. He first arrived to introduce himself some two days into the tenancy. That took place outside. That seems appropriate and no problem. Some five days later, Mr Duncan entered the premises unannounced as he had engaged a contractor to replace the aged hot water cylinder with an instant hot water system. He did not advise the property manager of this intended upgrade. The supply of gas lagged the swap and the tenants experienced a week or so of no hot water but Mr Duncan stated they never advised him. He says he would have arranged the bottles immediately. This is not the only occasion where the apparent lack of clarity of the roles and responsibilities of the property manager and owner caused some confusion and adverse impact on the tenants.
Mr Pile was at home sleeping. They had not meet at the first introduction as Mr Pile was at work. His awoke to find the owner in the house. This sequence of events does not appear to be disputed. Mr Duncan is silent on this entry in his affidavit.
I find he committed an unlawful act and exemplary damages should be ordered. As he acknowledged in his affidavit, this upgrade and entry was without the prior knowledge of the property manager and the exemplary damages order here is made against Douglas Duncan only. Quiet enjoyment
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.
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
The premises and the farm location meant some interaction between the tenants and owner (or his son, Sam) would occur. The tenants stated at the hearing they did not have an issue with Sam. Their dispute was with Douglas and more than one verbal “stoush” was recounted by the tenants. The tenants served a trespass notice on Douglas Duncan on 11 April 2023. I considered the tenants “robust” people who appear to have been suitably equipped to give it back.
In February 2023 the property manager produced a document regarding landlord access to the premises for water supply management. This upset the tenants. This was not clearly drafted as a term or condition of the tenancy but I do not consider it other than a belated attempt to clarify the water management and responsibilities that should have formed part of the tenancy agreement at the start of the tenancy.
The tenants had a problem with the shower mixer. It appears Hogan Plumbing attended and made a repair, but the landlord states it never issued a work order. I consider it more than likely that the plumber came after a request from the tenants without the landlord notice. To work on the mixer meant attempting to turn off the water supply. How to do it was not obvious and an attempt to isolate the premises supply from the tank was made. This was unsuccessful and the mixer was replaced with the supply on. It appears a person turned off the farm water supply during this exercise. This led to the tank overflowing. It appears that on the same day a council meter reader was also present and on seeing the leak he decided to turn off the scheme supply.
The net result was the water supply from the scheme was turned off by the council worker, who was apparently concerned about visible leaking from the tank. This stopped the water supply and caused great consternation for the owner and son, given the subsequent loss of water to the animals. Animal welfare concerns aside, Sam Duncan spoke of how a distressed animal also has a financial impact when sold. The water scheme is a trickle feed and it took some days to refill the tank. Alternative water had to be sourced.
The tank supply outlet configuration is not intuitive, and no written or diagrammatic instructions were provided at the commencement of the tenancy. The owner had shown Mr Pile early in the tenancy how to do it but generally any adjustment was made by Sam Duncan as required.
I do not find the tenants directly responsible for the interruption to the water, or any overflow from the tank, but neither do I, on balance, find the actions (or reactions) of the owner or son constitute any breach of quiet enjoyment.
It may be somewhat moot as the owner has stated he will never rent the premises again, but if it is to be rented, written instructions with some downstream redundancy or alarming may assist in avoiding a repetition.
On 5 May 2023 there was an unexpected power cut after a contractor working nearby cut a cable. This required a disconnect until made safe. There was an extended outage of electricity to the premises. I do not find the landlord contributed to this and while unfortunate, I do not find grounds for any compensation here.
A general issue was raised by the tenants was with regard to the actions (or lack of) and behaviour of property managers. I consider the property manager failed significantly in the onboarding of this property and ensuring it was suitable for a residential tenancy. That is considered the root cause of many subsequent problems that led to this application. I do note the honest assessment of the premises as noted in the landlord’s incoming inspection report. It is more the failure to immediately remedy these issues that gave the matters later oxygen.
A 14-day notice to remedy was served on the tenants on 3 February 2023 regarding a carpet stain and garden maintenance. Such assertions, as with the swimming pool removal, did not sit well with the tenants who might reasonably felt somewhat aggrieved given unresolved or historic landlord failings. I do not make any specific compensation order as the failures are compensated within other orders made.
There were suggestions from the tenants that the property management may have been influenced by some claimed familial connections with the owner meaning he received some benefit. I have no evidence to support that. Given what I consider was the sub-optimal property management during most of this tenancy, I conclude either the owner was let down rather receiving any of the perceived benefit, or he was advised appropriately but did not follow that advice. I do not need to determine which here.
I do not consider the landlords have harassed the tenants. Therefore, no exemplary damages for any unlawful act under s 38(3) are awarded.
I do consider quiet enjoyment, along with other issues, in the compensation determination below. Insurance policy
The tenants claim the landlord has not provided a copy of the insurance policy for the premises.
A tenant can request the landlord provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
The owner’s insurance came into play during the tenancy. A section of carpet was badly stained and the tenant’s accepted liability, sourcing $1000.00 to pay what they were advised was the excess cover required of them. No policy information was provided in support and later the excess was corrected to $450.00. The tenants have been refunded the $1000.00 so the claim for a refund was withdrawn.
As can be seen below, in the tenancy agreement section, it incorrectly states there is no insurance.
The landlord failed to accurately record the insurance details. However, I am unable to ascertain if this was drafted on the advice of the owner or through any failure or omission by the landlord. I find the landlord has committed an unlawful act but I make no order for exemplary damages as the breach is technical and I am not convinced the act was intentional.
The issue around the carpet and payments demanded/refunded is a factor in the general compensation consideration below (quiet enjoyment). Lock
Section 46(1) RTA requires the landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure.
The tenants claimed the pool house was unable to be locked. Given the uncertain status of the pool house later in the tenancy, and it’s lack of any real purpose due to its condition, as well as the defunct swimming pool, I do not consider there was any requirement to provide a means of securing the pool house and that claim is dismissed. Exemplary damages
As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.
Given the relevant circumstances and evidence for each unlawful act, as well as the above considerations, I make the following awards of exemplary damages. Bar one, they are made against both respondents. Between the respondents they may be more knowledgeable about the respective culpability. That is left with them to resolve as appropriate. a. Section 45(1)(c) Failure to ensure compliance of the swimming pool fencing. The tenants had a young family and there was an obvious risk of entry and access to the pool. While typically drained, rainfall meant sufficient depth of water could be present so that beyond the fall hazard, a risk of drowning could not be discounted. The addition of the pool to the ingoing condition report weighs it as more than likely it was included. However, the tenancy agreement lacked any specific maintenance provisions typical when a pool is included. I have also considered the tenants actions regarding trying to utilise the pool and the delay in seeking council clarification of any compliance concern. If not forced to remove their own pool, such a request may not have even been made. Given the above considerations, and recognising the public interest in securing swimming pools, I order exemplary damages of $500.00. b. Section 45(1)(bb) Failure to comply with the healthy homes standards (insulation/ventilation) The tenants raised a number of concerns regarding the cold house, especially regarding the impact on their children in the colder bedrooms. Mould was shown on some curtains but it is uncertain what was the underlying cause of that or when it first presented. However, it is accepted the premises was colder than it should have been if appropriately insulated. It is reasonable to accept some detrimental impact on the occupants quality of living due to the failure of the landlord to meet the HHS requirements. Such confirmation of the compliance by a landlord during onboarding of a new property for management should be business as usual by now. The fact there was some insulation in the ceiling was observed by a contractor during the tenancy. Having considered the various factors, I have determined an order of one- thirds of the maximum exemplary damages is appropriate here. This recognises the failure by the landlord on two fronts (insulation and ventilation). I order exemplary damages of $2,400.00. c. Section 48(4)(a) Landlord entry This relates to the unauthorised entry by Mr Duncan approximately one week into the tenancy. It was unacceptable and I cannot find any justification for it. Given he engaged a property management company for this tenancy, he must have appreciated the change a residential tenancy presented from any previous occupancy arrangement he may have had. Given the lack of repeat entry, I order exemplary damages at the lower end of $500.00. Compensation
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party
The factors the Tribunal should take into account when making a damages award are: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
I have considered compensation taking the above factors into account. I find compensation is appropriate and this grouped under three headings below: a. Failure to maintain This award compensates the tenancy for the general condition of the premises from the commencement and the failure of the landlord to address many matters until well into 2023 and a change in involvement by Ms Wind. I have considered the age and condition of the house in making this determination. There have been numerous issues raised by the tenants. Some minor and others of potentially greater significance. Having considered those, I have used a general rent rebate per week of $50.00. Given the tenancy lasted some 41 weeks, that equals a compensation figure of $2,050.00. b. Quiet enjoyment Again, the have been a number of impacts on the tenants right to quiet enjoyment. I did not find the outside visitations by the Duncans to be as significant as claimed by the tenants. At the hearing they stated they did not have a problem with Sam Duncan’s visits. The visits generally seemed reasonable and necessary, but the lack of physical and behavioural boundary definition hampered this tenancy. Some of the interactions may have been less than desirable but I do not see those that were either proven or such that they were grievous breaches. I have more concerns regarding the landlord’s stance and communication on a number of issues when raised. The root cause of some problems can be traced back to the tenancy formation and a lack of due process. In considering the impacts on the tenants here I have settled on a lump figure of $1000.00 as appropriate compensation. c. Loss of amenity – pool and pool house It is considered the pool was promoted as available at the commencement. Given it was winter it I likely not much thought or inspection was given to it at the time. I have considered the reaction of the landlord when the tenants installed their own pool. Assuming the tenant was correct that the advice received was the pool was acceptable, and even if not, their commitment to moving it as so instructed so it would make it so, the demand it was removed accentuates the lack of the existing pool. My final consideration was the later disturbance to the tenants when the pool and pool house were demolished. Here I have used a likely 12-week beneficial period when a pool such as shown would have been of likely attraction. Allowing a $50.00 rent rebate for that period returns a compensation figure of $600.00
While the compensation has been reflected in three categories, a number of issues cross-over or may not have fitted under any one of the three. I have considered all relevant issues as proven. These three orders comprise a final sum to reflect what is a reasonable level of compensation overall. Application filing fee
As the tenants have had substantial success with their application, I return their application filing fee.

Tenancy Tribunal case 4546635 — Exemplary damages at 590 Jeffersons Line, Marton, RD 1, Marton 4787, Whare

At a glance

Tenancy Tribunal case 4546635 — Exemplary damages at 590 Jeffersons Line, Marton, RD 1, Marton 4787, Whare

At a glance

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Residential Tenancies Act sections

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Property management

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Claims & awards

Order

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Residential Tenancies Act sections

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Property management

Frequently asked questions