What was the outcome of Tenancy Tribunal case 4629459?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 4629459?

Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Rent Arrears: $2,314.28 awarded to landlord

What type of tenancy dispute was case 4629459?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4629459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9341305-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4629459?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 4629459?

Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Rent Arrears: $2,314.28 awarded to landlord

What type of tenancy dispute was case 4629459?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4629459?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9341305-Tenancy_Tribunal_Order.pdf.

8 Olive Street, Masterton, Masterton 5810 Tenancy Tribunal Case 4629459 — Rent arrears

Claims and awards in Tenancy Tribunal application 4629459 — net $1,564.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,314.28		Rent arrears
Exemplary damages: Breach of HHS		$500.00	Breach of HHS
Exemplary damages: Tenancy agreements		$250.00	Tenancy agreements
Total award	$2,314.28	$750.00
Net award	$1,564.28
Total payable by Tenant to Landlord	$1,564.28

Claims and awards in Tenancy Tribunal application 4629459 — net $1,564.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,314.28		Rent arrears
Exemplary damages: Breach of HHS		$500.00	Breach of HHS
Exemplary damages: Tenancy agreements		$250.00	Tenancy agreements
Total award	$2,314.28	$750.00
Net award	$1,564.28
Total payable by Tenant to Landlord	$1,564.28

Order

No suppression orders apply to this decision.
The application for rehearing of the landlords claim is granted by consent.
Amber Lee Hodgson must pay Archer McHattie Limited as agent for Jannah Butcher and Thomas Campbell $1,564.28 immediately, calculated as shown in table below.
All other applications are dismissed.

Reasons

The Tribunal has received applications from both the landlord and tenant.
The landlords are Janna Butcher and Thomas Campbell. The tenant is Amber Hodgson. The tenancy commenced on 16 February 2023. Much more recently the landlords appointed a property manager, Archer McHattie Limited.
On 16 June 2023 the landlord filed their application with the Tribunal (4607769). The landlord applied for an order terminating the tenancy due to rent arrears, and seeking the payment of the arrears.
At teleconference hearing was convened on 11 July 2023 before adjudicator Aiolupotea. There was no appearance by the tenant. The adjudicator ordered the tenancy terminate, and the rent arrears be paid.
The tenant applied for a rehearing stating she did not receive a call from the adjudicator.
On 13 July 2023 the tenant filed an application against the landlord (4629459).
The tenancy subsequently ended, and possession has now been returned to the landlord.
A telephone hearing was convened today on 25 August 2023 before myself to consider the rehearing request and the tenants application. LANDLORD’S APPLICATION
Mr Archer confirmed that the Tenancy has ended, and possession has now been returned to the landlord. Therefore the only remaining thing to consider in relation to the landlords application, is the rent arrears.
Mr Archer sensibly confirmed that the application for rehearing should be granted, so that the Tribunal could proceed to consider the rent arrears amount at the end of the tenancy, in light of the tenants claim.
Mr Archer confirmed the rent arrears at the end of the tenancy is $2,314.28. Ms Hodgson confirmed that is the case, so that amount is ordered by consent of the parties. TENANT’S APPLICATION
The tenant seeks orders in relation to: a. Breach of the Healthy Homes Standards obligations b. Failure to maintain the premises c. Breach of obligations in relation to tenancy agreements. Healthy Homes Standards
The tenant states that the premises did not comply with the HHS, because it was uninsulated, there were draughts in windows and doors, insufficient heating.
In response Mr Archer advised that he has only commenced acting after the tenancy commenced. Mr Archer advised there is ceiling insulation, but the there is no insulation under the house because of clearance being around 100mm off the ground. The landlord states that the chimney was swept prior to the tenancy starting (swept in February 2023), and furthermore there was heating, being two heat pumps and a wood burner. The landlord agrees that there are two areas were draught stopping we needed, but that otherwise states the landlords were not aware of their obligations.
In response the tenant advised she did not know the situation with the ceiling insulation, but accepted the house was low. The tenant states that when she lit the fire it smoked out the house. The tenant agreed there are two heat pumps and a wood burner. However the tenant advised that there were draughts in all rooms.
Mr Archer disputed there was a problem with the fire advising he has lit the fire in the house since with no problems. Analysis
The tenant claims that the landlords have breached their 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, which is the case here.
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. In this case the landlord has provided two heat pumps and a wood burner. There is no evidence before me that these heaters would not meet the definition of being qualifying heaters, and therefore I find no breach in relation to the heating standard.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition.
The landlord says that the ceiling is insulated, and that is not disputed by the tenant. The tenants claim relates to the absence of underfloor insulation, and the landlord agrees that there is no insulation under the house. The HHS does provide an exemption to the required for insulation in specific circumstances, and one of those is when it is not reasonably practicable to install insulation in the relevant area, such as under the house if a worker cannot access the space due to height constraints. The landlords position is that there is only around 100 mm clearance, under the house, and so insulation cannot be installed there. The tenant has conceded that the clearance is limited. Overall, I accept the evidence from the property manager, that it will not be reasonable to expect insulation to be installed under the house, and therefore I find no breach has been established of the insulation requirements.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The landlord has accepted that there are two areas where there were unreasonable draughts in the premises, while the tenant considers that were more than two. In any event, there is agreement that there were unreasonable gaps allowing draft in two areas at least, so that means that the premises fails to comply with the HHS, in relation to draught stopping.
Failure to comply with the HHS is deemed an unlawful act, and given my finding in relation to draught stopping above, that means an unlawful act arises, meaning the Tribunal can order exemplary damages be paid.
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, being a maximum of $7,200.00 as noted above. On the basis of the information available, I consider that exemplary damages should be ordered, for these reasons:
I am not persuaded, that the breach was not intentional. When parliament introduced the HHS, there was considerable publicity around it, and it is a basic obligation that landlord should be aware of. I have received no evidence from the landlords at all, which would suggest that they had innocently overlooked their draught stopping obligations. The effect of the unlawful act would have been to make the premises cooler than it should have been, which would of course impact the tenant. There is a strong interest particularly for tenants in the public generally, that Tenancies be warm and dry, and compliant with the necessary legal obligations. It would be just to make an order in my assessment.
I have determined that an appropriate level of exemplary damages would be $500.00 On the scheme of things, the breach is limited of a limited extent and likely impact, and I consider that $500.00 would be a reasonable order. Failure to maintain
The tenant submits the landlord has failed to maintain the chimney, with reference to the issues noted above. Analysis
The RTA requires that landlords maintain the tenancy. The position taken by the tenant, is that the landlord had not properly maintained the chimney, which impacted her ability to use the wood burner. However I am not persuaded the tenant has proven that. The tenant considered that they had not been chimney sweeping undertaken, but I have no reason not to accept Mr Archer’s statement that it was undertaken in February. I also have no reason not to accept Mr Archer’s evidence that he has used the wood burner himself, and had no problems with it. In short, I found the tenant has not established this claim, so it is dismissed. Tenancy agreement breach
The tenant states that the landlord failed to supply the HHS documentation.
Mr Archer advised he cannot know if the entire agreement has been produced, advising that his client only provided a basic agreement to him, but accepts what he received did not have the HHS information. Analysis
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).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
The tenancy agreement provided by both the tenant and landlord, fails to have the necessary HHS and formation on it. The relevant regulations are the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Regulation 33 sets out the information that needs to be contained on tenancy agreements, which in short relates to information around the 5 HHS standards. The landlord has not established that his information was provided, so that is a breach of the landlords obligations, and also an unlawful act.
The maximum level of exemplary damages for failing to provide the required HHS information, is $750.00.
Taking into account the factors set out above from section 109, I consider that exemplary damages should be ordered taking into account that the landlord has not established the breach was not intentional. Again no evidence has been provided by the landlord, and the requirements around the HHS have been well publicised. The effect for the tenant is that she was not aware of the situation with Tenancy as far as HHS were concerned. There is a strong interest for tenants and the public generally, that tenancies comply with the HHS, and these statements are in important measure to achieve that aim. It would be just to make an exemplary damages order.
I consider that an appropriate amount of exemplary damages would be $250.00, that is one third of the maximum. There is no evidence that the landlords have previously breached this requirement, and I cannot see any other factors that arise that would be aggravating, and arguing for a higher award. Name suppression
The tenant has applied for name suppression. Name suppression can be ordered when a party has been wholly or substantially successful. That is not the case here, the tenant has had only a measure of success in relation to both applications, there are insufficient grounds to order name suppression, therefore the application for suppression is declined.

Tenancy Tribunal case 4629459 — Rent arrears at 8 Olive Street, Masterton, Masterton 5810

At a glance

Tenancy Tribunal case 4629459 — Rent arrears at 8 Olive Street, Masterton, Masterton 5810

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions