Published tribunal order
Tenancy Tribunal case 4603929 — Exemplary damages at 7 Westwood Road, Athenree Gorge, RD 1, Waihi 3177
Decided 22 Feb 2024 · Published 22 Feb 2024 · Application 4603929
Tenant favoured
- Exemplary damages
Order
- Harvinder Singh Lidher and Sarbjit Singh must pay Tayte Isabel Grace Francis $6,020.44 immediately, as calculated in the table below.
- The Tribunal declares that the notice of termination of tenancy dated 2 June 2023 is not retaliatory and has full force and effect.
Reasons
- Both parties attended the hearing.
- This order ought to be read together with the Tribunal’s Order dated 28 September 2023.
- Ms Francis makes a number of claims against the landlords. I shall take each of these in turn. Breach of s45
- Under section 45 of the Residential Tenancies Act 1986 a landlord must abide by certain obligations which include: (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair.
- 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.
- I shall address each of the claimed breaches of this section in turn. Failure to repair bathroom
- It was not contested that in June 2021 the tenant advised the landlords that the bathroom was in serious need of repair. There are holes in the walls and floor which is rotten and there is a leak in the bath, further damaging the condition of the floor.
- It was also undisputed that the bathroom has not been repaired to date.
- On this evidence I find that the landlords have breached s45 by failing to repair in a timely way and that the landlords are now subject to an award of exemplary damages for this breach.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- Pursuant to the factors set out in s109(3) I am satisfied that the landlord intended not to repair the damage. I say this because I accept the landlord’s evidence that he knew about the state of the bathroom and that in October 2021 a plumber advised him that the bathroom needed a complete renovation.
- I accept that the landlords did not effect the repair because they were advised that the premises needed to be vacated before this repair, and others, could be completed. I note also that the landlords did not give notice to terminate the tenancy until 2 June 2023.
- The effect on the tenant is that bathroom is unsanitary, the floor is constantly wet and the flooring is soft. Because of this the tenant and her daughter are reluctant to use it.
- In terms of the public interest, the public has a legitimate expectation that landlords abide by their obligations under the Residential Tenancies Act 1986 and do not provide sub-standard housing in exchange for rent.
- I will address the award for this breach later in this decision. Failure to repair kitchen in a timely way
- It was accepted at today’s hearing that the landlords were aware that the kitchen needed replacing in December 2021 and that it was not until April 2023, some 15-16 months later, that the kitchen was replaced.
- This is a breach of the landlords’ obligation to undertake repairs in a timely way and is therefore subject to an award of exemplary damages.
- In considering the factors set out in paragraph 10 above, I am satisfied that the landlords intended not to remedy the issue in a timely way. I say this because although the landlords cite Covid lockdowns as a reason for not replacing the kitchen earlier, the landlords could not provide any evidence as to when they contacted the tradesperson to complete the replacement kitchen, or what delays were caused by any lockdowns.
- There was also no evidence as to the landlords’ intent regarding this delay.
- The effect on the tenant was that she could not fully use the kitchen – the cabinetry was swollen, there was a cupboard door under the sink missing exposing the plumbing, and the kitchen smelt because of the rotten flooring and cabinetry.
- In considering the public interest, see paragraph 14 above. Failure to repair broken and/or ineffective guttering in a timely way
- I accept the evidence indicating that in some parts the premises’ guttering is broken and in others it is ineffective.
- The tenant advised that the landlords ought to have seen the state of the guttering when they came to see the house in June 2021.
- While the landlords advised that they were not aware of the guttering issue until April 2023, I find that the landlords are nevertheless in breach of their obligation to repair in a timely way because the guttering is still not repaired, some 10 months later.
- This is a breach of s45 and is therefore an unlawful act, subject to an award of exemplary damages.
- In considering the factors set out in paragraph 10 above, I am satisfied that the landlord intended not to repair the guttering. I say this because the landlord advised that he had put a handyman in charge of effecting the repair but failed to follow up on whether the repair had been completed.
- The effect on the tenant is that water has been leaking down a wall and also comes through the bathroom window, whether it is open or closed. I also accept that this dampness has at least contributed to the mould in the house.
- Again, the public interest is set out in paragraph 14 above. There is particular interest in recent years that landlords provide tenants with homes that are free of dampness. Failure to repair electrical issues in a timely way
- I accept the evidence indicating that in July 2023 the tenant advised the landlords that rats had chewed though the electrical wiring and that this issue was repaired in December 2023.
- I am satisfied that this is a breach of the landlord’s obligation to repair in a timely way.
- The landlord offered no explanation as to the reason for this delay.
- The effect on the tenant was that for this period there was no lighting in either her bedroom or her daughter’s bedroom.
- The public interest factor is set out in paragraph 14 above. Holes in roof, rats, holes in wall, windows not sealed, repair of deck stairs.
- The tenant has also made claims regarding the failure to repair holes in the roof, the failure to repair holes in the wall, the failure to seal the windows, and the failure to get rid of rubbish outside the house, causing rats to infest the property.
- As an applicant, the tenant is required to prove her case on the balance of probabilities. In this case that means that she is required to show that her version of events is more likely than the landlords’ version of events.
- I am dismissing these parts of the tenant’s claim for reasons that include: (a) The tenant was unable to prove that she had advised the landlords, prior to her 14 day notice to remedy dated 1 June 2023, that there were holes in the roof, holes in the wall and that there was a mould issue at the house, partly caused by the windows not being sealed; and (b) The tenant was also unable to show that more likely than not the rubbish at the back of the house was not hers. There was no photographic evidence provided of the rubbish at any stage during her tenancy and although I accept that at least one skip bin full of rubbish was removed in March 2023, it is not clear whose rubbish was left behind; and (c) There was no objective evidence, provided either by the tenant or the landlords, as to when the landlords were advised that the deck stairs were rotten and needed repair. I note that these were repaired in April 2023. Compensation
- In her application the tenant seeks compensation for the breaches of s45. However although she has stated that she will need to replace items such as duvets, blankets, towels, toys, pillows, shelves and clothes, she has not provided any evidence as to these costs.
- Her claim for compensation is therefore dismissed. Award of exemplary damages for the above breaches
- As advised at the hearing, an award of exemplary is intended to be punitive in nature and to act as a deterrent to landlords breaching their obligations under the Residential Tenancies Act 1986.
- In coming to an award of exemplary damages, the principle from the District Court decision of Gardiner v Upland Bay Investments Limited (DC Wellington, CIV 2014-085-13, 27 August 2014) is instructive. The Court in that case held that if there were multiple breaches of a particular section, then only one set of exemplary damages could be ordered for that breach.
- This means that even though I have found that the landlords have breached s45 a number of times, the Tribunal can order only one amount of exemplary damages.
- In coming to an award of exemplary damages of $6,000.00, which is at the higher end of the scale, I have taken into account the number of breaches committed by the landlords, and the fact that the landlords appeared somewhat indifferent to the condition of the premises given that no inspection has taken place at the premises, in spite of the tenant alerting them to significant issues in the house. Retaliatory Notice
- On 2 June 2023 the landlords gave the tenant notice ending the tenancy on 31 August 2023. The tenant remains in the property and claims that the notice is retaliatory.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlords were motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlords. See section 54(1) Residential Tenancies Act 1986.
- The evidence shows that on 1 June 2023 the tenant gave the landlord a 14 day notice to remedy a lot of issues in the house. The juxtaposition of this notice and the notice of termination the next day, would ordinarily indicate that it was likely that the notice was retaliatory and therefore of no effect.
- However, in coming to the determination that the notice of termination was not retaliatory I have taken into account the accepted evidence that the landlords had previously advised the tenant that the tenancy was to be terminated so that the repairs could be done, and that she had requested that it not be terminated on the grounds that she had nowhere else to go.
- The landlords had accepted this request but reasonably, when faced with a further request to repair multiple issues, decided to proceed with a notice of termination so that the issues in the house could be remedied.
- While the tenant states that the repairs could have been done without her having to vacate the tenancy, I am satisfied that the premises needed to be vacated due to the magnitude and multiplicity of issues that need to be remedied.
- Having determined that the notice of termination is not retaliatory, it remains of full force and effect. Reimbursement of filing fee
- I am ordering the landlords to reimburse the filing fee to the tenant because the tenant has had a substantial success with their claim and I consider it appropriate it to do so. C ter Haar 20 February 2024