What was the outcome of Tenancy Tribunal case 4595380?

The tribunal order states: Hendrika Kerk must pay Simon Wendell Lawrence $3,383.44 immediately,

How much money was awarded in case 4595380?

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 4595380?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4595380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9752698-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4595380?

The tribunal order states: Hendrika Kerk must pay Simon Wendell Lawrence $3,383.44 immediately,

How much money was awarded in case 4595380?

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 4595380?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4595380?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9752698-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 40 Hull Street, South Hill, Oamaru 9400 Tenancy Tribunal Case 4595380 — Rent arrears

Order

Hendrika Kerk must pay Simon Wendell Lawrence $3,383.44 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $447.00 to Simon Wendell Lawrence immediately.
The tenant’s other claims are dismissed.

Reasons

Both parties attended the hearing.
Ms Kerk had a tenancy of the premises commencing on 26 May 2019. The tenancy ended on 24 July 2023 and Mr Lawrence claimed rent totalling $6,460.00. On 7 August 2023, Ms Kerk filed a cross application. She seeks payment of the bond and: i.Compensation for: • Failure by the landlord to provide a Healthy Homes compliance statement; • Failure to comply with the Healthy Homes Standards, in particular provision of heating, insulation, draughts, extractor fans; and • Failure to repair the premises in a timely manner or at all. ii.Exemplary damages for: • Failure to lodge the bond; • Failure to provide a written tenancy agreement; • Failure to provide Healthy Homes statement; • Failure to appoint an agent; • Failure to provide locks; • Harassment by the landlord; and • Unlawful entry by the landlord or contractors. iii.Declaration that the rent payable is more than market rent.

How much is owed for rent?

Mr Lawrence provided a rent record which proves the amount owing at the end of the tenancy.

Is Ms Kerk entitled to compensation?

Healthy Homes Compliance statement

The requirement to include or provide a healthy homes statement with the tenancy agreement only applies to new tenancy agreements commencing after 1 December 2020 and all written variations or renewals taking effect after 1 December: section 13A(1CA) of the Residential Tenancies Act 1986 (the Act).
As mentioned this tenancy commenced in May 2019. Thus Mr Lawrence was not required to provide the compliance statement. This claim is therefore dismissed. Insulation requirements
Ms Kerk believes that the premises do not have complaint ceiling insulation as required by section 45(1)(bb) of the Act. Mr Lawrence said that there is complaint ceiling insulation in the premises.
As this is Ms Kerk’s claim she has the onus of proof. The standard of proof is on the balance of probabilities (or more likely than not). Thus, to be successful she must provide sufficient evidence to establish that Mr Lawrence is in breach of his obligations regarding insulation, and I am not satisfied that she has done so here. A belief that there is no or no compliant insulation without more is not sufficient. Healthy Homes Standards and provision of heating
All landlords must comply with the Healthy Homes Standards (found in the Residential Tenancies (Healthy Homes Standards) Regulations 2019). The Standards include detailed requirements for the provision of heating, adequate ventilation, drainage, minimising draughts and moisture ingress.
There was no dispute that extractor fans, a heat pump and other work required to bring the premises up to the healthy homes standards was only completed shortly before the tenancy ended.
However, the date for compliance with the Standards for this tenancy has not yet arrived. Thus, Mr Lawrence is not in breach of the healthy homes standards for this tenancy and Ms Kerk’s claim for compensation under this head is dismissed.
While the landlord is not in breach of the Healthy Homes Standards with the respect to the heating standards, section 45(1)(c) of the Act requires a landlord to comply with all building, health and safety requirements. One of these requirements is compliance with the Housing Improvement Regulations 1947. Regulation 6 of those Regulations provides that: “Every living-room shall be fitted with a fireplace and chimney or other approved form of heating”.
There was no form of heating provided for the tenancy until the heat pump was installed near the end of the tenancy. Not providing a form of heating in the living room for the majority of the tenancy is a breach of section 45(1)(c) of the Act.
I the circumstances I consider the sum of $1,500.00 reasonable to compensate Ms Kerk for the breach. In assessing the amount of compensation I have taken into account the length of the tenancy (some four years) and Ms Kerk’s evidence that the house was cold and damp. Maintenance and repair
Section 45(1)(b) of the Act provides that the landlord must provide and maintain the premises in a reasonable state of repair. Section 40(1)(d) of the Act requires the tenant to notify the landlord, as soon as possible after discovery, of any damage or of the need for repairs to the premises. Thus, once the tenant notified the landlord or the landlord otherwise became aware of the need for repairs, the obligation in section 45(1)(b) requires those repairs to be attended to in a timely manner.
What time frame is reasonable depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.
Ms Kerk claims that Mr Lawrence is in breach of the obligation in section 45(1)(d) of the Act with respect to a roof leak, the bathroom cabinet, the laundry window, the toilet seat, and the kitchen light.
The roof above the hall leaked during heavy rain in November 2019. Ms Kerk told Mr Lawrence of the issue and the roof was repaired three weeks later but Ms Kerk said that she was concerned about the electrics given the water came through the hall light socket and Mr Lawrence should have had it checked.
I find that the roof leak was repaired within a reasonable time after Mr Lawrence becoming aware of the issue. I do not consider that Mr Lawrence is in breach of any obligation by not having the wiring check. There is no evidence of issues with the wiring since the leak in November 2019.
Ms Kerk claims in the bathroom cabinet was rotten, had black mould, and the the door would stick. She provided photographs in support.
I dismiss this claim. The photographs show an aged cabinet and what looks like minor areas of mould on the inside back wall of the cabinet but I do not consider that the issue is as bad as Mr Kerk claims it to be or that compensation is appropriate here. As mentioned the cabinet is aged but is in reasonable repair for its age.
There was no dispute that the laundry window frame was rotten at the tenancy commencement and it became worse over time. The window was removed by a builder sometime in 2022 and a board placed over the gap but the builder did not return to install a new window. The window gap remained boarded up for approximately six months until a new window was installed.
Taking six months to install the new window is in my view unreasonable and a breach of section 45(1)(d) of the Act. Ms Kerk said that the boarded window stopped light from getting into the laundry room. It was also draughty. In the circumstances I consider $600.00 reasonable to compensate her for the breach.
Ms Kerk claims that the toilet seat was cracked and dirty at the tenancy commencement. She purchased another seat and asked Mr Lawrence to install it. Mr Lawrence claims that there was nothing wrong with the old seat but he installed the new one for Ms Kerk as requested. It seems that he did so within a reasonable time. Therefore there is no proven breach of section 45(1)(c) of the Act and the claim for compensation is dismissed.
Mr Lawrence installed a new fluorescent tube light in the kitchen. However, Ms Kerk claims that the light was not installed correctly because it fell hitting her head. Mr Lawrence disputes that it wasn’t installed correctly. He said that the light could either be clipped up to the ceiling or allowed to hang by wires. He said that it appears that it simply came off its clips and was hanging by the wires. There was no dispute that he remedied the issue (reclipped it to the ceiling) within a reasonable time. I am therefore not satisfied that he is in breach of any obligation owed to Ms Kerk with respect to the light. The claim for compensation is therefore also dismissed.

Should an order for exemplary damages be made?

Failure to lodge the bond

Section 19(1)(b) of the Act requires a bond to be lodged by the landlord within 23 working days of receiving it. Failure to do so is declared to be an unlawful act for which exemplary damages up to a maximum of $1,500.00 may be payable.
There was no dispute that Mr Lawrence did not lodge the $447.00 bond paid by Ms Kerk in May 2019 until 11 October 2023. Mr Lawrence is therefore in breach of section 19(1)(b) and I am required to consider whether exemplary damages should be payable and, if so, how much.
Exemplary damages are different to compensatory damages. They are designed to punish and to deter. They are like a fine and 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 proved, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act. These are: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.”
Mr Lawrence was aware of his obligation to lodge the bond (he has a total of 12 rentals) and therefore his failure to lodge it is considered to be intentional. He said that he did not realise that he had not lodged it until he received this application. He said that he simply overlooked it and he had “other things going on”.
I accept by a fine margin that Mr Lawrence overlooked or forgot to lodge the bond and was not aware he had not done so until he received this application. I also take into account that the bond was lodged, albeit three years late, and the effect on Ms Kerk of it being lodged late appears to be minimal. However, being a landlord is a business and it is important that landlords comply with all legal obligations in respect of the tenancy. It is also in the interests of tenants and the public interest that the bond is lodged promptly with the Bond Centre as a protection against a landlord’s unreasonable retention of it. Taking all these factors into account I have ordered exemplary damages of $350.00 to be paid by Mr Lawrence to Ms Kerk. Provision of written tenancy agreement and healthy homes statement
Section 13(4)(a) of the Act provides that the failure by a landlord to provide a copy of the tenancy agreement to the tenant before the tenancy commences is an unlawful act for which exemplary damages may be payable. However, the obligation in section 13 to provide a copy of the agreement did not come into effect until 11 February 2021, after this tenancy commenced.
Section 13A of the Act requires landlord to include in the tenancy agreement a statement that he will comply with the healthy homes standards (once fully implemented). However, again the obligation to do so did not take effect until 1 December 2020 (after this tenancy commenced).
In any event, section 109(2) of the Act provides that no application for exemplary damages (other than for non-lodgement of the bond) may be made later than 12 months after the date of commission of the unlawful act.
Accordingly, the claim for exemplary damages for not providing a copy of the tenancy agreement or a healthy homes statement is dismissed. Failure to appoint an agent
Ms Kerk claims that Mr Lawrence was overseas at various times for more than 21 days without appointing an agent as required by section 16A of the Act.
However, Mr Lawrence denies ever being outside New Zealand for more than 21 days during the tenancy and Ms Kerk did not provide evidence to support her belief that he was.
The claim under this head is therefore also dismissed. Failure to provide locks
Section 46 of the Act requires a landlord to provide and maintain such locks as are necessary to ensure the premises are reasonably secure. A failure to do so is an unlawful act for which exemplary damages up to a maximum of $1,500.00 maybe payable. The 12-month time limitation for making a claim does not apply here because the breach (failure to provide locks) is an ongoing obligation.
There was no dispute that there was no lock provided on the garage door at the premises
I am satisfied that the failure to provide a lock for the garage door is a breach of section 46 and an award of exemplary damages is appropriate here. Applying the factors set out above in paragraph 29 I order Mr Lawrence to pay to Ms Kerk exemplary damages of $200.00. In assessing the amount payable I have taken into account that Mr Lawrence knew Ms Kerk wanted the garage to be secure because she kept bikes in it. I have also taken into account that the house itself was secure and the breach relates only to the garage. Unlawful entry
Section 48 of the Act provides for the landlord’s right of entry to the premises. Generally, the landlord is required to obtain the tenant’s consent to entry or give the tenant the appropriate notice prior to the entry, unless the entry is necessary in the case of an emergency. For the purposes of section 48 ‘premises’ does not include land or facilities.
When the landlord wishes to enter the premises to complete necessary repairs, the landlord is required to give at least 24 hours notice of the intended entry giving the reason for it. It is an unlawful act for the landlord to enter the premises without the tenant’s prior consent or without giving the appropriate notice.
Ms Kerk claims that Mr Lawrence did not give the appropriate notice to enter to complete the installation of the laundry window. In particular she claims that he did not specify what he required the entry for. I do not agree. There are emails messages between Ms Lawrence and Ms Kerk on 10 and 13 March 2023 in which Mr Lawrence says that he intends to start work on the laundry window between 10 am and 5pm the flowing Tuesday (14 March).
Ms Kerk also claims that Mr Lawrence was in beach of section 48 of the Act because he requested entry to remove a dead tree and planted a lemon tree on the property in November or December 2022. However, she accepts that he did not enter after she said no to the intended entry. In any event, it is not a breach of section 48 for a landlord to come onto the property provided they do not enter the house or other buildings without first giving notice or getting consent.
The claim for exemplary damages for unlawful entry is therefore dismissed. Harassment
Section 38(2) of the Act provides that a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises. Where the breach of the tenant’s right in section 38(2) is sufficiently severe that it amounts to harassment it is deemed to be an unlawful act for which exemplary damages can be awarded.
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.
In March 2023 Mr Lawrence arranged for an electrician to install a heat pump and extractor fans in the premises. Entry for the work to be completed was eventually agreed to but Ms Kerk was upset because the electrician completed the work at her premises on a weekend day and then completed the same work on an empty unit on a Monday. She believes that the work should have been done on her unit during the week. She considers that this amounted to bullying by the landlord.
I dismiss this claim. It is clear that the decision to complete the work on Ms Kerk’s unit during the weekend was not to bully or harass her. Mr Lawrence explained that it was necessary to complete the work on Ms Kerk’s unit first because the ducting for the fans was required to be connected from her unit to the other units.
Ms Kerk also claims that Mr Lawrence abused her and said “inappropriate things” that made her feel uncomfortable. Mr Lawrence said that Ms Kerk was rude and abusive to him and he was also stressed by what he said was the attitude of Ms Kerk towards him.
I do not consider that the incidents described by Ms Kerk (that occurred within the 12-month limitation period) constitute harassment. In my view the difficulties between Ms Kerk and Mr Lawrence are simply indicative of a break down in their relationship rather than any attempt by Mr Lawrence to bully or intimidate Ms Kerk.
The claim for harassment is therefore dismissed

Is the rent payable more than market rent?

The rent for the premises increased from $149 per week to $339 per week with effect from 19 October 2022. Mr Lawrence said that he had a market rent appraisal completed and $339.00 was on the low side of the range given.
Ms Kerk claims that the increase is “unreasonable” but she did not provide any evidence to support that it is more than market rent payable for the tenancy. However, even if she did establish that $339.00 is substantially more than market rent, the Tribunal cannot make any order reducing the amount of rent payable earlier than the date of the application. Ms Kerk’s application was filed after the tenancy ended and her obligation to pay rent ended. Payment of the Tribunal application fee
Mr Lawrence has been fully successful in his claim. He is therefore entitled to payment of the Tribunal application fee. Ms Kerk has been only partially successful in her claims and I do not consider payment of the fee paid by her is appropriate.

Tenancy Tribunal case 4595380 — Rent arrears at Unit/Flat 2, 40 Hull Street, South Hill, Oamaru 9400

Tenancy Tribunal case 4595380 — Rent arrears at Unit/Flat 2, 40 Hull Street, South Hill, Oamaru 9400

Order

Reasons

How much is owed for rent?

Is Ms Kerk entitled to compensation?

Should an order for exemplary damages be made?

Is the rent payable more than market rent?

Order

Reasons

How much is owed for rent?

Is Ms Kerk entitled to compensation?

Should an order for exemplary damages be made?

Is the rent payable more than market rent?