What was the outcome of Tenancy Tribunal case 4696589?

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

How much money was awarded in case 4696589?

Compensation: $1,000.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Smoke Alarms: $120.00 awarded to landlord; Smoke Alarms: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4696589?

The primary dispute was Exemplary damages. Related themes: Smoke alarms, Property damage, State of repair.

Where can I read the official tribunal order for case 4696589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9899933-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4696589?

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

How much money was awarded in case 4696589?

Compensation: $1,000.00 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Property Damage: $300.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Smoke Alarms: $120.00 awarded to landlord; Smoke Alarms: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4696589?

The primary dispute was Exemplary damages. Related themes: Smoke alarms, Property damage, State of repair.

Where can I read the official tribunal order for case 4696589?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9899933-Tribunal_Order.pdf.

Unit/Flat 1, 549 Black Road, Ashley Clinton, RD 1, Takapau Tenancy Tribunal Case 4696589 — Exemplary damages

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Order

Claims and awards in Tenancy Tribunal application 4696589. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Interference with smoke alarms – compensation	$120.00	Interference with smoke alarms – compensation
Interference with smoke alarms – exemplary damages	$1,000.00	Interference with smoke alarms – exemplary damages
Damage from fires – insurance excesses	$1,000.00	Damage from fires – insurance excesses
Failure to maintain gardens – compensation	$1,000.00	Failure to maintain gardens – compensation
Refusing landlord access – exemplary damages	$1,000.00	Refusing landlord access – exemplary damages
Unlawful use of premises – exemplary damages	$300.00	Unlawful use of premises – exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement

No suppression orders apply around publication of this decision.

The Bond Centre is to pay the bond of $800.00 (6492203-007) to Conon James Peter Kynoch as agent for Kynachan Partnership immediately.

Anita Karauria must pay to Conon James Peter Kynoch as agent for Kynachan Partnership $3,640.44 immediately as set out in the table below.

The tenant’s application is dismissed for want of prosecution.

Reasons

The landlord attended the hearing. The tenant did not.

The matter was part heard on 20 November 2023 and adjourned until today.

A previous order has been issued granting the landlord’s application for termination and possession of the property.

Because the tenant did attend the hearing today to advocate her claims, I consider the tenant is not interested in continuing the proceedings. Accordingly, the tenant’s cross-application is dismissed for want of prosecution.

The remaining landlord claims for consideration today include: a. Interference with smoke alarms – section 40(2) Residential Tenancies Act 1986 (RTA) b. Failure to upkeep of the garden – section 40(1)(c) RTA c. Damage – section 40(2)(a) RTA i. to the premises from two fires inside the premises ii. to walls from sellotaping wires to walls iii. to chattels, specifically a bamboo screen d. Failure to allow the landlord’s entry – section 48 RTA e. Using premises for unlawful purpose – section 40(2)(b) f. Refund of the bond; and g. Reimbursement of the filing fee

The landlord introduced new claims on the day of the hearing for damage to a screen door but as this was not raised by the landlord in their application or in any subsequent submissions by the landlord, I have declined to hear the new claim. The landlord is welcome to file a new application for those claims.

The landlord indicated that he might not bring a claim due to the time commitment away from work and stress involved in making a further application. Interference with smoke alarms

The landlord claims the tenant removed smoke alarms during the tenancy. The landlord claims $120.00 compensation for the cost of replacing the smoke alarms and exemplary damages for the interference with the smoke alarms.

The landlord is a volunteer fireman and takes fire safety extremely seriously. The landlord says that he installed three smoke alarms in the premises at the start of the tenancy and provided video evidence from a routine inspection showing all three smoke alarms had been removed. The landlord returned at a later date and replaced the missing smoke alarms.

A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) RTA. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A Residential Tenancies Act 1986.

On balance I consider it more likely than not that all smoke alarms were removed by the tenant during the tenancy. The landlord’s smoke alarm compensation claim is awarded in full; the amount appears reasonable. I find that the tenant has committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.

Taking those considerations into account, I conclude that exemplary damages should be ordered. There is no evidence from the tenants as to what happened with the smoke alarms. However, removing smoke alarms would ordinarily result from a conscious or intentional decision made by a person. The effect of the unlawful act was to place the premises, and the occupants at risk, which is the very thing the smoke alarm requirements in residential premises, seek to avoid. There is a strong interest for tenants and landlords, including the public, to be if free any risk of fire. I consider it would be just to make an award in this case.

In this case, I order exemplary damages of $1,000, being 1/3 of the maximum level available. I have not been provided with any evidence to show that the tenant has previously breached her smoke alarm obligations in tenancies, and there are otherwise no further aggravating factors that would argue for a higher award. Damage

A landlord must prove that damage to the premises occurred during the tenancy and 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. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is caused carelessly, and is covered the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.

If the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Fire damage

The landlord has claimed compensation for damage caused from two separate fires, including: a. damage from a fire from the stove top into the rangehood and up the wall; and b. smoke damage to the walls and ceiling from a blocked open fire being used.

The landlord says that the damage came to his attention during a routine inspection without the tenant present. The landlord says that the tenant had not notified the landlord of the fire in the kitchen, the blocked open fire, or the damage caused as a result of both.

The landlord submitted entry inspection photographs and routine inspection photographs and videos of the damage showing clear evidence of a substantial fire in the kitchen with a blackened wall and burnt out rangehood. The video evidence shows paraphernalia for smoking marijuana on the kitchen table and a used fire extinguisher.

The landlord claims the cost of the two insurance excesses of $500.00 paid for the fire damage in the kitchen and the room with the open fire, totalling $1000.00.

I am satisfied that the damage is more than fair wear and tear. I have not considered whether the damage was caused carelessly or intentionally by the tenant as the compensation sought by the landlord is less than four weeks rent. Accordingly, I have awarded $1,000.00 to the landlord, being two excesses of $500.00.

The landlord also claims the tenant damaged a bamboo screen and wallpaper. The landlord provided photographs of the damage but no entry inspection photographs demonstrating the state of either at the start of the tenancy. The landlord also failed to produce a quote or invoice for the repair work stating that no repairs had yet been caried out. Given the lack of evidence provided, these claims are dismissed. Upkeep of garden

The property has extensive gardens with 2.5 acres of park like landscaping.

The tenancy agreement was clear that the tenant was responsible for maintaining the gardens in return for reduced rent. The tenant was not expected to do the lawns.

The landlord submitted photographs and videos of the property becoming overgrown during the tenancy. The landlord provided copies of a 14 day notice sent to the tenant regarding her failure to maintain the garden as per the tenancy agreement. In the end the landlord employed a casual farm labourer 1- 2 days per week to maintain the gardens. The landlord claims compensation for the cost of doing so but provides no evidence of actual expenditure.

Tenants have a general duty to maintain the premises (including lawns and gardens) in a “reasonably clean and tidy” condition (section 40(1)(c) RTA).

The ‘default’ apportionment of responsibility is that tenants look after mowing the lawns and keeping gardens and small shrubs tidy, and landlords look after larger trees. However, this principle is not an absolute rule, and the circumstances of each tenancy must be taken into consideration.

In this case, the tenancy agreement signed by the parties to records their respective responsibilities. The photos and videos produced in evidence show that the gardens were not maintained by the tenant, if at all.

Balancing these considerations and having regard to the Tribunal’s jurisdiction to determine disputes “according to the substantial merits and justice of the case”, my finding is that it is appropriate to make an award of nominal compensation which recognises the landlord’s genuine concern and the tenant’s breach of the tenancy agreement.

I have awarded $1,000.00, which is based broadly on $50.00 for every week of the tenancy. Refusing entry to premises

The landlord claims the tenant refused entry to the premises for the landlord to undertake routine inspections and to install replacement smoke alarms which has been removed by the tenant. The landlord provided documentary evidence of notifications sent to the tenant and video evidence of the tenant refusing entry.

A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.

Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A RTA.

The tenant refused entry on two occasions. Accordingly, I find they have committed two unlawful act.

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) RTA

There is a strong public interest in deterring tenants from refusing entry to landlords to carry out their obligations, particularly when it relates to health and safety of the premises and people within. The impact on the landlords was severe. They were particularly concerned about safety and insurability of the premises. In part this refusal led to this claim spiralling. So I find it just to award exemplary damages of $1,000.00. Unlawful use of premises

The landlord claims the tenant has used the premises unlawfully, by smoking marijuana in the premises.

A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) RTA.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A RTA.

It is an offence against the Misuse of Drugs Act 1975 to smoke marijuana.

The landlord says that he noticed drug paraphernalia in the premises when he was cleaning the gutters as part of his routine maintenance. He then gave 48 hours’ notice of a routine inspection. The tenant was not home at the time specified for the inspection so the tenant telephoned Tenancy Services for advice. The landlord gave notice to the tenant of a further inspection and the tenant failed to attend again so the landlord completed the inspection without the tenant present.

During the inspection the landlord took a video of his findings including a cast iron gas burner on the desk, pipes, a bong, aerosol cans, funnels, spotting knives and marijuana buds. It was at this same inspection that the landlord discovered the fire in the kitchen that had taken place.

Whilst the landlord did not see the tenant smoking marijuana personally, the tenant lived in the premises alone with her son.

Where allegations of criminal conduct are made, the standard of proof remains the civil standard on the balance of probabilities, but the evidence must be robust. Taking account of all of the evidence I am satisfied that the tenant was smoking cannabis at the property so they have used the premises for an unlawful purpose and have committed an unlawful act.

Because cannabis is a Class C controlled drug the harm from this drug is considered by Parliament to be in the lowest category of moderate risk of harm to the individual or society by its misuse. – section 3A MDA. There is limited public interest in sanctioning this behaviour. The Police do not take action unless there are multiple complaints. The effect in this case has been minimal. The damage in the kitchen from a fire can only be speculated to be from smoking marijuana and that damage has been addressed by way of compensation. I therefore consider it just to award a modest amount of $300.00 exemplary damages. Filing fee

Because the landlord has substantially with the claim I must reimburse the filing fee. T Lee-Lewis 14 February 2024

Order

Claims and awards in Tenancy Tribunal application 4696589. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Interference with smoke alarms – compensation	$120.00	Interference with smoke alarms – compensation
Interference with smoke alarms – exemplary damages	$1,000.00	Interference with smoke alarms – exemplary damages
Damage from fires – insurance excesses	$1,000.00	Damage from fires – insurance excesses
Failure to maintain gardens – compensation	$1,000.00	Failure to maintain gardens – compensation
Refusing landlord access – exemplary damages	$1,000.00	Refusing landlord access – exemplary damages
Unlawful use of premises – exemplary damages	$300.00	Unlawful use of premises – exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement