What was the outcome of Tenancy Tribunal case 4553053?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4553053?

Accommodation Costs: $12,600.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $4,320.00 awarded to tenant; Property Damage: $8,912.50 awarded to landlord; Rent Arrears: $2,712.86 awarded to landlord

What type of tenancy dispute was case 4553053?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4553053?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442817-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4553053?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4553053?

Accommodation Costs: $12,600.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $4,320.00 awarded to tenant; Property Damage: $8,912.50 awarded to landlord; Rent Arrears: $2,712.86 awarded to landlord

What type of tenancy dispute was case 4553053?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4553053?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442817-Tenancy_Tribunal_Order.pdf.

21 Schnapper Rock Road, Greenhithe, Auckland 0632 Tenancy Tribunal Case 4553053 — Property damage

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21 Schnapper Rock Road, Greenhithe, Auckland 0632 Tenancy Tribunal Case 4553053 — Property damage | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4553053 — net $19,655.36 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 21 April 2023	$2,712.86		Rent arrears to 21 April 2023
Interior wall and door repairs	$8,912.50		Interior wall and door repairs
Accommodation costs	$12,600.00		Accommodation costs
Exemplary damages: Section 45		$4,320.00	Section 45
Exemplary damages: Section 13		$250.00	Section 13
Total award	$24,225.36	$4,570.00
Net award	$19,655.36
Total payable by Tenant to Landlord	$19,655.36

Claims and awards for application 4553053 — net $19,655.36 NZD. Verify on MoJ.

Rent arrears to 21 April 2023

Amount: $2,712.86
Awarded to: Landlord
Reason: Rent arrears to 21 April 2023

Interior wall and door repairs

Amount: $8,912.50
Awarded to: Landlord
Reason: Interior wall and door repairs

Accommodation costs

Amount: $12,600.00
Awarded to: Landlord
Reason: Accommodation costs

Exemplary damages: Section 45

Amount: $4,320.00
Awarded to: Tenant
Reason: Section 45

Exemplary damages: Section 13

Amount: $250.00
Awarded to: Tenant
Reason: Section 13

Claim types — money lines allowed on this order

Exemplary damages Property damage Rent arrears

Order

No suppression orders apply around publication of this decision.
Miracle Josephine Papi Taki must pay A & I Sisters Limited Jiping Li $19,655.36 immediately, calculated as shown in table below.

Reasons

The Tribunal must consider applications filed by both parties. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing with support people.

BACKGROUND

The tenancy agreement has been provided. This records the landlord as Jiping Li, and the tenant as Miracle Josephine Papi Taki. The tenancy commenced on 15 February 2023, and was a periodic tenancy.
During the tenancy, extensive damage to the interior of the premises was caused. The tenant says the damage was caused by her partner.
On 29 March 2023 the tenant emailed the landlord, reporting that she had moved out of the tenancy, but that her partner remained. The tenant states that I am currently boarding with a friend which means I have to pay board here so I'm asking if its okay if you let me off or if my ex partner can pay it as I'm not allowed to stay there and I can't afford to pay rent and board and pay bills food etc
The landlord replied shortly thereafter stating “yes I can just simply let you off”. Further emails that day showed that the parties agreed the key would be returned on Friday 31 March 2023, and that the tenants rent liability would end that day.
The communication on file supports that the landlord was intending to move back into the premises. Also on 29 March 2023 the landlord gave notice to her own landlord ending that tenancy. The emails on file confirm the landlord advising her own landlord that: As my own tenant of 21 Schnapper Rock Rd has terminated the tenancy agreement with me today, I have to move inside to minimize my financial loss. I am moving out on 21 April 2023. Best wishes for you to find your next tenant.
Subsequently the landlord and her landlord agreed that the landlords tenancy would end on 4 April 2023.
On 31 March 2023 the tenant requested an extension of the date possession would return to the landlord, and it was agreed possession would return on Monday 3 April 2023.
What then happened is that the tenant declined to move out. The tenant took the position that 30 days notice was required, so she refused to return possession to the landlord.
The landlord went back to her own landlord, looking to extend her tenancy as Ms Taki was not moving out. The emails show that Ms Li’s landlord declined to extend her tenancy, advising Ms Li on 31 March 2023 that: I have just spoken to the new tenants. They must move in by next Wednesday. So you have to move out by next Tuesday as we agreed.
That put the landlord in a difficult position, in that she was not able to extend her own tenancy, and not able to move into the dwelling which Ms Taki was not agreeing to return to her. In order to find somewhere else to live, Ms Li took a 6 week rental for another property, which cost her $12,600.00. Ms Li seeks to recover that cost from the tenant. I note an email on file in relation to that short term rental agent, where Ms Li wrote: It was nice talking to you over the phone. My family and I will have to move out our current house and have nowhere to stay. The cheapest hotel/motel I could find is around $450 per day which is not something I could afford. Please try your best to help. As you requested, I now list my requirements below:
Location: better to be northshore but can be anywhere as long as it is not more than 30km from CBD.
Rental Term: I am not certain about it. It depends on when my tenancy tribunal hearing will be scheduled. The term shall be between 4 and 8 weeks. Please try to find a flexible one.
People number: 4 adults and 2 children (11 and 8 years old)
Carpark: Yes I do need 2 carparks at least. On street or off street are both fine.
And the agent responded: I have found one for you. ..., Panmure. the owner is my friend. The 4- bedroom house is new renovated and the landlord is planning to use it for Airbnb from now on. The price is cheaper than hotel. it is $300/day. The rental term has to be 6-week fixed and you must pay all fees (12600)at once. strictly no refund even if you live less than 6 weeks. If you are ok with that, i can meet you there at 7pm. Call me if you need.
That same night the tenant transferred $12,600.00 for the rental.
The landlord filed this application with the Tribunal. A hearing was convened before Adjudicator Mr Greene, who issued a consent order dated 19 April 2023. Mr Greene recorded that the tenant had left the premise, and gave the tenant until 21 April 2023 to remove her belongings.
Ultimately possession was returned to the landlord, and the parties now return to the Tribunal for orders in relation to the remaining disputes over the tenancy.

LANDLORDS CLAIMS

Rent Arrears

The landlord has applied for an order that the tenant pay rent arrears.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
The landlords position is that the rent arrears for the premises is $2,712.86, being the rent arrears as of 21 April 2023.
As I indicated to the parties at the hearing, the tenant must be liable for rent until 21 April 2023, which was the date the tenant had effective possession of the premises (the date she needed to remove her belongings by).
The landlords claim is established, and is ordered in full. Compensation for damage
The landlord has claimed compensation for damage caused to the inside of the premises. There is no dispute between the parties that damage was caused during Ms Taki’s tenancy, and in particular that there were multiple holes made in the walls and doors. These are shown in the photographs provided.
On the tenants part, she consider there were some defects with the premises before she moved in, but she otherwise agreed the significant damage was caused during her tenancy, Ms Taki says it was caused by her partner.
With any claim for compensation, to receive an order the party (the landlord in this case) must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Tenants are liable for the cost of repairing damage that is intentional. There is no doubt at all that the damage is not fair wear and tear, it was plainly intentional damage. Ms Taki to be fair does not suggest otherwise.
The landlord seeks an order for repairs to the interior of the premises. The invoice from Wealth Fulls Ltd has been provided dated 22 May 2023, totalling $10,695.00. The landlord requested that the sum for electrical work be removed from the claim, which means the remaining amount (the claim) is $8,912.50.
The tenant agrees that her partner caused some damage to the house. The tenant said that she would have an argument with her partner, she would leave the tenancy, and her partner would cause the damage to the premises while she was away.
I have considered the work which has been detailed in the invoice, and consider it does relate to the damage related to the tenants partner. I find the tenant is liable for the full amount claimed. Accommodation costs
The landlord seeks costs of $12,600.00 for accommodation costs she incurred when the tenant did not return the tenancy on 3 April 2023 as had been agreed.
The tenant disputes that she should be liable for these costs, because she moved out on 21 April 2023, and further because the landlord did not give the necessary notice period.
As I explained at the hearing, the RTA confirms that a tenant can end a periodic tenancy, by giving 28 days notice to the landlord. But that does not mean that a tenant and landlord cannot agree on a different period, they certainly can. For example the parties could have agreed that the tenancy would end say 50 days following the notice, or it could be a shorter period, a few days in this case. As long as both parties are in agreement, there is no problem.
In this case, the tenant and landlord both agreed that the tenancy would end on 3 April 2023. That notice was binding, and while the tenant sought to have it extended further, there was no agreement from the landlord – but the landlord was not required to agree on an extension to a later date. Therefore the tenant has failed to return the premises within the agreed time frame.
When the tenant stepped back from her agreement to return the property on 3 April 2023, that left the landlord in a difficult position, because she has given notice for her own tenancy, and her own landlord was not agreeable to extending that Tenancy further. The landlord needed to find somewhere for herself and family to live, and to that extent entered into a short-term rental for another property.
In my assessment, the landlords actions were understandable, and reasonable. I can see that the landlord has looked for various options to meet her housing needs, and as it turned out, the short-term rental was probably the most cost-effective option compared with hotel accommodation.
The tenant subsequently left the tenancy on or around 21 April 2023, but the landlord could not have known that would be the situation, she could not also have known the date when the tenancy Tribunal would be able to order possession return, and if necessary for an eviction to occur. A short-term rental of six weeks was not an unreasonable approach for the landlord to have taken at the time.
I find Ms Taki must be liable for the accommodation costs for the landlord, because that is a cost the landlord has incurred directly arising from a breach of the part of the tenant. This claim is therefore ordered in full.

TENANTS CLAIMS

The tenant has made a number of claims for breaches of the landlords obligations which I will address shortly, those would be claims for exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act. Smoke alarms
The tenant’s position is that there was no smoke alarm in the premises at the start of the tenancy.
The landlord says that there was a smoke alarm in the premises, and it had been removed and was on the windowsill at the end of the tenancy.
I have carefully consider the photographs provided by the parties, and I can see no evidence of a smoke alarm in any of those photographs, that includes photographs that the landlord says were taken at the start of the tenancy.
I have also considered the tenancy agreement, which also does not record the smoke alarm situation in the premises.
On balance I accept the tenant evidence that there were no smoke alarm in the premises. I found the tenant to be a convincing witness. She accepted damage caused during the tenancy readily, and I did not find her evasive in her evidence.
In relation to the landlord, I gained the strong impression that the landlord did not have a sound understanding of her obligations as a landlord under the RTA. For example, the landlord’s position is that the tenant should have told the landlord, or given a notice, if work or obligations have not been met. In fact the landlord is wrong there, meeting her obligations under the RTA are positive obligations on the landlord, for example the landlord must have compliant smoke alarms installed at the start of the tenancy, there is no obligation on the tenant to tell the landlord that smoke alarms are not there, before the landlord acts.
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational. I find the landlord has not complied with this. The landlord has therefore committed an unlawful act under section 45(1A). I will consider exemplary damages for a breach of section 45(1A) below. Maintenance, and providing the tenancy reasonably clean and tidy
The tenants position is that the house was run down. There were holes in the house, the sliding door could not be pulled open, there was mould in the bathroom, the house was cold and unhealthy, lawn not mowed, door handles missing and pests.
In response the landlord said that during the stay the tenant did not complain about the premises, and no 14 day notice was given. The landlord said she was not living in the premises, so did not know that any work was needed.
The tenant states that the photographs provided by the landlord must have been taken before the previous tenants had moved out, because the exchange of keys was directly from the outgoing tenants, and further the outgoing tenants had left items and rubbish such as couches, fridges and freezer etc which are not shown on the photographs.
Section 45 of the RTA sits out the landlords responsibilities, and that includes the following: 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and
The Tribunal does not accept that the photographs provided by the tenant, are photographs taken at the start of Ms Taki’s tenancy. I accept that Ms Taki took the tenancy over directly from the outgoing tenants. I accept Ms Taki’s evidence that the outgoing tenants had a range of substantial belongings and rubbish that has been left on the premises.
The photographs provided by the tenant show that the grounds are extensively overgrown, there was some mould inside the tenancy which would not have developed in the short time the tenant was living there, and I accept there were other defects such as holes around electrical sockets, and missing handles and locks. Insure the premises were not reasonably clean when Ms Taki started her tenancy, nor were the premises reasonably maintained. The landlord has therefore breached her obligations under section 45(1)(a) and (b). Again that is an unlawful act for which exemplary damages for breach of section 45(1A) can be ordered.
The question then becomes with exemplary damages can be ordered for a breach of the landlords obligations in relation to the smoke alarms, cleanliness of the premises, and maintenance. Again I must consider the factors in section 109: a. In my view the landlords actions in relation to these matters must be considered intentional. The landlord has not provided any explanation for why she was not able to ensure the premises had a smoke alarm, that it was clean at the beginning of the tenancy, and properly maintained. b. The effect for the tenant is that she has not had the benefit of a clean property at the start of the tenancy, she would have needed to undertake work herself, nor had the benefit of a properly maintained dwelling. c. There are strong interests for tenants and the general public that tenancies have working smoke alarms, and that the dwelling otherwise complies with the obligations in law. d. It would be just to make an order.
The maximum level of exemplary damages for breach of section 45(1A) is $7,200.00.
In this case I consider an order at the level of 60% of the maximum would be reasonable. In fixing that amount, there are broadly three obligations under section 45 that have been breached here, one relates to smoke alarms which has significant potential safety ramifications, one relates to cleanliness, and the other maintenance. Healthy Homes Standards
The tenant has claimed that the landlord has breached her obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but 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 2025.
In this case I have no doubt that the Tenancy would not meet the HHS standard for heating at least, as an open fire would not be considered a qualifying heater. My impression is that the landlord did not realise what her obligations under the HHS were, because she advised me that heating was not needed because it was during the warmer months, and when it got cooler she would provide a gas heater. In order to comply with the HHS the Tenancy needed to have a qualifying heater, which could have been a heat pump, or a wood burner, but an open fire or gas heater would not be suitable. That must be provided within 90 days of the tenancy starting, not depending on the time of the year.
However, I find for technical reasons the tenants claim must fail. The tenancy was less than 90 days in duration, and the landlord did not need to comply with the HHS obligations within the first 90 days of the tenancy. Because the tenancy ended before that 90 day period, the landlord has not technically breached her obligations. However I strongly recommend that the landlord seek information on what her obligations around the HHS are, for future tenancies. Information on tenancy agreement
The tenant also claims that information in relation to the HHS situation with the tenancy was not provided.
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
The relevant regulations are the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Regulations 33 – 39 sets out wide ranging and detailed information which must be included on a tenancy agreement, to notify a tenant of the healthy homes situation with that premises. In this case the landlord has used the standard form Tenancy Services tenancy agreement which in fact has boxes and areas where the statement would be made. However the landlord has not completed any of that section of the tenancy agreement, if the landlord had done so, she would have met all of her requirements as far as the HHS statement was concerned. But ultimately the landlord has not provided that information.
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA), which is the case here.
Taking into account the section 109 factors I consider that exemplary damages should be ordered: a. I consider it more likely than not that the landlords breaches intentional. The landlord was using a standard form tenancy agreement, which made it plain that information around the HHS obligations needed to be provided to the tenant. It is likely the landlord has elected not to complete that information, which must be deemed an intentional action. b. The effect for the tenant is that she has not been notified of the state of compliance around the HHS with the tenancy. c. There is a strong interest for tenants and the public particularly, and landlords also, that Tenancy’s in New Zealand are warm and dry, and healthy. Compliance with the HHS is an important mechanism to achieve that. d. It would be just to make an order.
The maximum level of exemplary damages for the breach, as set out in schedule 1A of the RTA, is $750.00. In this case I have ordered $250, a third of the maximum, which I consider would be a reasonable order in the circumstances.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. Neither party has been wholly or substantially successful, so name suppression is declined.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4553053 — net $19,655.36 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 21 April 2023	$2,712.86		Rent arrears to 21 April 2023
Interior wall and door repairs	$8,912.50		Interior wall and door repairs
Accommodation costs	$12,600.00		Accommodation costs
Exemplary damages: Section 45		$4,320.00	Section 45
Exemplary damages: Section 13		$250.00	Section 13
Total award	$24,225.36	$4,570.00
Net award	$19,655.36
Total payable by Tenant to Landlord	$19,655.36

Claims and awards for application 4553053 — net $19,655.36 NZD. Verify on MoJ.

Rent arrears to 21 April 2023

Amount: $2,712.86
Awarded to: Landlord
Reason: Rent arrears to 21 April 2023

Interior wall and door repairs

Amount: $8,912.50
Awarded to: Landlord
Reason: Interior wall and door repairs

Accommodation costs

Amount: $12,600.00
Awarded to: Landlord
Reason: Accommodation costs

Exemplary damages: Section 45

Amount: $4,320.00
Awarded to: Tenant
Reason: Section 45

Exemplary damages: Section 13

Amount: $250.00
Awarded to: Tenant
Reason: Section 13

Claim types — money lines allowed on this order

Exemplary damages Property damage Rent arrears

Order

No suppression orders apply around publication of this decision.
Miracle Josephine Papi Taki must pay A & I Sisters Limited Jiping Li $19,655.36 immediately, calculated as shown in table below.

Reasons

The Tribunal must consider applications filed by both parties. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing with support people.

BACKGROUND

The tenancy agreement has been provided. This records the landlord as Jiping Li, and the tenant as Miracle Josephine Papi Taki. The tenancy commenced on 15 February 2023, and was a periodic tenancy.
During the tenancy, extensive damage to the interior of the premises was caused. The tenant says the damage was caused by her partner.
On 29 March 2023 the tenant emailed the landlord, reporting that she had moved out of the tenancy, but that her partner remained. The tenant states that I am currently boarding with a friend which means I have to pay board here so I'm asking if its okay if you let me off or if my ex partner can pay it as I'm not allowed to stay there and I can't afford to pay rent and board and pay bills food etc
The landlord replied shortly thereafter stating “yes I can just simply let you off”. Further emails that day showed that the parties agreed the key would be returned on Friday 31 March 2023, and that the tenants rent liability would end that day.
The communication on file supports that the landlord was intending to move back into the premises. Also on 29 March 2023 the landlord gave notice to her own landlord ending that tenancy. The emails on file confirm the landlord advising her own landlord that: As my own tenant of 21 Schnapper Rock Rd has terminated the tenancy agreement with me today, I have to move inside to minimize my financial loss. I am moving out on 21 April 2023. Best wishes for you to find your next tenant.
Subsequently the landlord and her landlord agreed that the landlords tenancy would end on 4 April 2023.
On 31 March 2023 the tenant requested an extension of the date possession would return to the landlord, and it was agreed possession would return on Monday 3 April 2023.
What then happened is that the tenant declined to move out. The tenant took the position that 30 days notice was required, so she refused to return possession to the landlord.
The landlord went back to her own landlord, looking to extend her tenancy as Ms Taki was not moving out. The emails show that Ms Li’s landlord declined to extend her tenancy, advising Ms Li on 31 March 2023 that: I have just spoken to the new tenants. They must move in by next Wednesday. So you have to move out by next Tuesday as we agreed.
That put the landlord in a difficult position, in that she was not able to extend her own tenancy, and not able to move into the dwelling which Ms Taki was not agreeing to return to her. In order to find somewhere else to live, Ms Li took a 6 week rental for another property, which cost her $12,600.00. Ms Li seeks to recover that cost from the tenant. I note an email on file in relation to that short term rental agent, where Ms Li wrote: It was nice talking to you over the phone. My family and I will have to move out our current house and have nowhere to stay. The cheapest hotel/motel I could find is around $450 per day which is not something I could afford. Please try your best to help. As you requested, I now list my requirements below:
Location: better to be northshore but can be anywhere as long as it is not more than 30km from CBD.
Rental Term: I am not certain about it. It depends on when my tenancy tribunal hearing will be scheduled. The term shall be between 4 and 8 weeks. Please try to find a flexible one.
People number: 4 adults and 2 children (11 and 8 years old)
Carpark: Yes I do need 2 carparks at least. On street or off street are both fine.
And the agent responded: I have found one for you. ..., Panmure. the owner is my friend. The 4- bedroom house is new renovated and the landlord is planning to use it for Airbnb from now on. The price is cheaper than hotel. it is $300/day. The rental term has to be 6-week fixed and you must pay all fees (12600)at once. strictly no refund even if you live less than 6 weeks. If you are ok with that, i can meet you there at 7pm. Call me if you need.
That same night the tenant transferred $12,600.00 for the rental.
The landlord filed this application with the Tribunal. A hearing was convened before Adjudicator Mr Greene, who issued a consent order dated 19 April 2023. Mr Greene recorded that the tenant had left the premise, and gave the tenant until 21 April 2023 to remove her belongings.
Ultimately possession was returned to the landlord, and the parties now return to the Tribunal for orders in relation to the remaining disputes over the tenancy.

LANDLORDS CLAIMS

Rent Arrears

The landlord has applied for an order that the tenant pay rent arrears.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect.
The landlords position is that the rent arrears for the premises is $2,712.86, being the rent arrears as of 21 April 2023.
As I indicated to the parties at the hearing, the tenant must be liable for rent until 21 April 2023, which was the date the tenant had effective possession of the premises (the date she needed to remove her belongings by).
The landlords claim is established, and is ordered in full. Compensation for damage
The landlord has claimed compensation for damage caused to the inside of the premises. There is no dispute between the parties that damage was caused during Ms Taki’s tenancy, and in particular that there were multiple holes made in the walls and doors. These are shown in the photographs provided.
On the tenants part, she consider there were some defects with the premises before she moved in, but she otherwise agreed the significant damage was caused during her tenancy, Ms Taki says it was caused by her partner.
With any claim for compensation, to receive an order the party (the landlord in this case) must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Tenants are liable for the cost of repairing damage that is intentional. There is no doubt at all that the damage is not fair wear and tear, it was plainly intentional damage. Ms Taki to be fair does not suggest otherwise.
The landlord seeks an order for repairs to the interior of the premises. The invoice from Wealth Fulls Ltd has been provided dated 22 May 2023, totalling $10,695.00. The landlord requested that the sum for electrical work be removed from the claim, which means the remaining amount (the claim) is $8,912.50.
The tenant agrees that her partner caused some damage to the house. The tenant said that she would have an argument with her partner, she would leave the tenancy, and her partner would cause the damage to the premises while she was away.
I have considered the work which has been detailed in the invoice, and consider it does relate to the damage related to the tenants partner. I find the tenant is liable for the full amount claimed. Accommodation costs
The landlord seeks costs of $12,600.00 for accommodation costs she incurred when the tenant did not return the tenancy on 3 April 2023 as had been agreed.
The tenant disputes that she should be liable for these costs, because she moved out on 21 April 2023, and further because the landlord did not give the necessary notice period.
As I explained at the hearing, the RTA confirms that a tenant can end a periodic tenancy, by giving 28 days notice to the landlord. But that does not mean that a tenant and landlord cannot agree on a different period, they certainly can. For example the parties could have agreed that the tenancy would end say 50 days following the notice, or it could be a shorter period, a few days in this case. As long as both parties are in agreement, there is no problem.
In this case, the tenant and landlord both agreed that the tenancy would end on 3 April 2023. That notice was binding, and while the tenant sought to have it extended further, there was no agreement from the landlord – but the landlord was not required to agree on an extension to a later date. Therefore the tenant has failed to return the premises within the agreed time frame.
When the tenant stepped back from her agreement to return the property on 3 April 2023, that left the landlord in a difficult position, because she has given notice for her own tenancy, and her own landlord was not agreeable to extending that Tenancy further. The landlord needed to find somewhere for herself and family to live, and to that extent entered into a short-term rental for another property.
In my assessment, the landlords actions were understandable, and reasonable. I can see that the landlord has looked for various options to meet her housing needs, and as it turned out, the short-term rental was probably the most cost-effective option compared with hotel accommodation.
The tenant subsequently left the tenancy on or around 21 April 2023, but the landlord could not have known that would be the situation, she could not also have known the date when the tenancy Tribunal would be able to order possession return, and if necessary for an eviction to occur. A short-term rental of six weeks was not an unreasonable approach for the landlord to have taken at the time.
I find Ms Taki must be liable for the accommodation costs for the landlord, because that is a cost the landlord has incurred directly arising from a breach of the part of the tenant. This claim is therefore ordered in full.

TENANTS CLAIMS

The tenant has made a number of claims for breaches of the landlords obligations which I will address shortly, those would be claims for exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act. Smoke alarms
The tenant’s position is that there was no smoke alarm in the premises at the start of the tenancy.
The landlord says that there was a smoke alarm in the premises, and it had been removed and was on the windowsill at the end of the tenancy.
I have carefully consider the photographs provided by the parties, and I can see no evidence of a smoke alarm in any of those photographs, that includes photographs that the landlord says were taken at the start of the tenancy.
I have also considered the tenancy agreement, which also does not record the smoke alarm situation in the premises.
On balance I accept the tenant evidence that there were no smoke alarm in the premises. I found the tenant to be a convincing witness. She accepted damage caused during the tenancy readily, and I did not find her evasive in her evidence.
In relation to the landlord, I gained the strong impression that the landlord did not have a sound understanding of her obligations as a landlord under the RTA. For example, the landlord’s position is that the tenant should have told the landlord, or given a notice, if work or obligations have not been met. In fact the landlord is wrong there, meeting her obligations under the RTA are positive obligations on the landlord, for example the landlord must have compliant smoke alarms installed at the start of the tenancy, there is no obligation on the tenant to tell the landlord that smoke alarms are not there, before the landlord acts.
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational. I find the landlord has not complied with this. The landlord has therefore committed an unlawful act under section 45(1A). I will consider exemplary damages for a breach of section 45(1A) below. Maintenance, and providing the tenancy reasonably clean and tidy
The tenants position is that the house was run down. There were holes in the house, the sliding door could not be pulled open, there was mould in the bathroom, the house was cold and unhealthy, lawn not mowed, door handles missing and pests.
In response the landlord said that during the stay the tenant did not complain about the premises, and no 14 day notice was given. The landlord said she was not living in the premises, so did not know that any work was needed.
The tenant states that the photographs provided by the landlord must have been taken before the previous tenants had moved out, because the exchange of keys was directly from the outgoing tenants, and further the outgoing tenants had left items and rubbish such as couches, fridges and freezer etc which are not shown on the photographs.
Section 45 of the RTA sits out the landlords responsibilities, and that includes the following: 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and
The Tribunal does not accept that the photographs provided by the tenant, are photographs taken at the start of Ms Taki’s tenancy. I accept that Ms Taki took the tenancy over directly from the outgoing tenants. I accept Ms Taki’s evidence that the outgoing tenants had a range of substantial belongings and rubbish that has been left on the premises.
The photographs provided by the tenant show that the grounds are extensively overgrown, there was some mould inside the tenancy which would not have developed in the short time the tenant was living there, and I accept there were other defects such as holes around electrical sockets, and missing handles and locks. Insure the premises were not reasonably clean when Ms Taki started her tenancy, nor were the premises reasonably maintained. The landlord has therefore breached her obligations under section 45(1)(a) and (b). Again that is an unlawful act for which exemplary damages for breach of section 45(1A) can be ordered.
The question then becomes with exemplary damages can be ordered for a breach of the landlords obligations in relation to the smoke alarms, cleanliness of the premises, and maintenance. Again I must consider the factors in section 109: a. In my view the landlords actions in relation to these matters must be considered intentional. The landlord has not provided any explanation for why she was not able to ensure the premises had a smoke alarm, that it was clean at the beginning of the tenancy, and properly maintained. b. The effect for the tenant is that she has not had the benefit of a clean property at the start of the tenancy, she would have needed to undertake work herself, nor had the benefit of a properly maintained dwelling. c. There are strong interests for tenants and the general public that tenancies have working smoke alarms, and that the dwelling otherwise complies with the obligations in law. d. It would be just to make an order.
The maximum level of exemplary damages for breach of section 45(1A) is $7,200.00.
In this case I consider an order at the level of 60% of the maximum would be reasonable. In fixing that amount, there are broadly three obligations under section 45 that have been breached here, one relates to smoke alarms which has significant potential safety ramifications, one relates to cleanliness, and the other maintenance. Healthy Homes Standards
The tenant has claimed that the landlord has breached her obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but 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 2025.
In this case I have no doubt that the Tenancy would not meet the HHS standard for heating at least, as an open fire would not be considered a qualifying heater. My impression is that the landlord did not realise what her obligations under the HHS were, because she advised me that heating was not needed because it was during the warmer months, and when it got cooler she would provide a gas heater. In order to comply with the HHS the Tenancy needed to have a qualifying heater, which could have been a heat pump, or a wood burner, but an open fire or gas heater would not be suitable. That must be provided within 90 days of the tenancy starting, not depending on the time of the year.
However, I find for technical reasons the tenants claim must fail. The tenancy was less than 90 days in duration, and the landlord did not need to comply with the HHS obligations within the first 90 days of the tenancy. Because the tenancy ended before that 90 day period, the landlord has not technically breached her obligations. However I strongly recommend that the landlord seek information on what her obligations around the HHS are, for future tenancies. Information on tenancy agreement
The tenant also claims that information in relation to the HHS situation with the tenancy was not provided.
Section 13A of the Residential Tenancies Act 1986 sets out the requirements for tenancy agreements. Subsection (1CA) holds that: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
The relevant regulations are the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Regulations 33 – 39 sets out wide ranging and detailed information which must be included on a tenancy agreement, to notify a tenant of the healthy homes situation with that premises. In this case the landlord has used the standard form Tenancy Services tenancy agreement which in fact has boxes and areas where the statement would be made. However the landlord has not completed any of that section of the tenancy agreement, if the landlord had done so, she would have met all of her requirements as far as the HHS statement was concerned. But ultimately the landlord has not provided that information.
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA), which is the case here.
Taking into account the section 109 factors I consider that exemplary damages should be ordered: a. I consider it more likely than not that the landlords breaches intentional. The landlord was using a standard form tenancy agreement, which made it plain that information around the HHS obligations needed to be provided to the tenant. It is likely the landlord has elected not to complete that information, which must be deemed an intentional action. b. The effect for the tenant is that she has not been notified of the state of compliance around the HHS with the tenancy. c. There is a strong interest for tenants and the public particularly, and landlords also, that Tenancy’s in New Zealand are warm and dry, and healthy. Compliance with the HHS is an important mechanism to achieve that. d. It would be just to make an order.
The maximum level of exemplary damages for the breach, as set out in schedule 1A of the RTA, is $750.00. In this case I have ordered $250, a third of the maximum, which I consider would be a reasonable order in the circumstances.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. Neither party has been wholly or substantially successful, so name suppression is declined.

Tenancy Tribunal case 4553053 — Property damage at 21 Schnapper Rock Road, Greenhithe, Auckland 0632

At a glance

Tenancy Tribunal case 4553053 — Property damage at 21 Schnapper Rock Road, Greenhithe, Auckland 0632

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions