What was the outcome of Tenancy Tribunal case 4711109?

The tribunal order states: Michael Ralph Emerson is granted possession of the premises at 5 Pohutukawa

How much money was awarded in case 4711109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711109?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4711109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9755531-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4711109?

The tribunal order states: Michael Ralph Emerson is granted possession of the premises at 5 Pohutukawa

How much money was awarded in case 4711109?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711109?

The primary dispute was Rent arrears. Related themes: Smoke alarms, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4711109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9755531-Tenancy_Tribunal_Order.pdf.

5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473 Tenancy Tribunal Case 4711109 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473 Tenancy Tribunal Case 4711109 — Rent arrears | TenantCheck

Order

Michael Ralph Emerson is granted possession of the premises at 5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473 immediately.
Michael Ralph Emerson must pay Gabrielle Samantha Bradley $1,000.00 immediately, being exemplary damages for failing to provide underfloor insulation.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant. The landlords seeks a possession order and compensation for damage, the tenant seeks orders around an absence of underfloor insulation.
Both parties appeared at the hearing today in Thames.
The tenancy agreement has been provided, and records the landlord as Mike Emerson, and the tenant as Gabrielle Bradley. The tenancy commenced on 3 October 2022, and is a periodic tenancy.
It is also relevant to note that the Tribunal convened a telephone hearing as set out in an order from Mr Greene dated 13 September 2023. In that order, Mr Greene ordered the tenant to pay rent arrears of $2,800.00, and a conditional termination order was made if the payment was not made. Mr Greene noted that “the landlord has served a termination notice for the tenancy to end on 10 October 2023”, and directed that a hearing be scheduled after 16 October 2023, that being a date after possession had been returned to the landlord, to consider the remaining claims.
A hearing was then scheduled for today, 13 December 2023, in Thames. The parties confirmed that the tenant was still in possession of the tenancy. The landlord confirmed that the only outstanding orders he was seeking was a possession order and for the payment of compensation for damage, and the tenant confirmed her only claim was around insulation.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

LANDLORDS CLAIMS

Possession order

The landlord seeks a possession order. The landlord relies on a termination notice dated 6 August 2023, which advised the landlord required possession of the premises so that he could reside in the premises himself. The notice required possession to be returned on 10 October 2023.
Text messages were exchanged by the parties extending the possession return date to 16 October 2023. But as I will discuss shortly, the tenant considered there was a further extension from the landlord to an indeterminate date.
The landlords position is the tenancy was lawfully terminated by notice by notice on 6 August 2023.
In response the tenant says that there was a property inspection where the landlord verbally agreed she could stay longer and would put this in writing but never did. Otherwise the tenant agreed that she did receive the 6 August 2023
The landlord responded that he “definitely, 100%” did not verbally agree to extend the tenancy. Analysis
There is no suggestion from the tenant that the notice terminating the tenancy was invalid, certainly one of the grounds landlord can terminate a periodic tenancy on notice, is when the landlord is to live on the premises him or herself, as is the case here.
Therefore, the tenancy would have terminated on 10 October 2023, but I can see that the landlord agreed to a short extension of the termination date, to 16 October 2023. Therefore, on 16 October 2023, the tenant needed to return the premises to the landlord.
However the tenant says that there was a verbal approval given by the landlord for the tenancy to be extended, but the tenant did not state what date the extension would have been to, only that the landlord said he would put it in writing, but no such written extension was ever provided. The response from the landlord, is simply to the extent that such a verbal statement did not happen.
On balance the tenant has not convinced me that the landlord agreed to renew the tenancy, extend the tenancy end date, or withdraw the notice. In fact, I can see that the landlord filed his first application with the Tribunal on 12 October 2023, and has recorded in that application: Tenants have not vacated the property as per the termination notice.
It makes no sense to me why the landlord would have recorded that in the application to the Tribunal, on 12 October 2023, if he had within only a day or so agreed to the tenant staying in the premises.
On the evidence available I find the tenancy ended on 16 October 2023, the landlord now seeks a possession order, and given the tenant remains in possession of the tenancy, the possession order is granted. Damage claim
The landlord has also filed a claim for damage and compensation to the tenancy. I can see from the evidence on the file that after the landlord filed that application, the tenants have undertaken some work at the Tenancy, so the nature of the landlords claim would be quite different to what it was initially. In any event, the landlord recognised at the hearing today that this claim would be premature, and I agree that is the case. Normally damage claims are determined once possession is returns to the landlord, the landlord has undertaken the necessary work, and established the costs.
I will accordingly make no orders in relation to the damage claim, but confirmed to the landlord at the hearing today that if there are any costs incurred when possession is returned, he may file a fresh application with the Tribunal, and those will be considered at a later hearing.

TENANTS CLAIM

The sole claim from the tenant related to there being no underfloor insulation. The tenant provided photographs showing that there is no insulation under the house.
The tenants position is that the premises are about one metre off the ground (a suspended timber floor), and that over the winter the premises were draughty and cold, because there was no underfloor insulation.
The landlord agrees that there was no insulation installed under the house, noting it has since been installed. Mr Emerson advised that the house was previously his family home. Mr Emerson set out the background for how the tenancy came about, and the intention to have rented the premises to help get the tenant back on her feet. Otherwise the landlord notes there is a wood burner fireplace and the house is carpeted throughout.
I asked the landlord why he had recorded so specifically in the tenancy agreement that there was “Underfloor -Polystyrene Insulation R2”. The landlord was frank, and acknowledged that this information was wrong, as he knew there was no underfloor insulation. The landlord confirmed that he knew that in order to rent the tenancy there needed to be insulation, hence that information was put on the tenancy agreement. The landlords position is that the rent was set low, and he had not pursued the balance of the rent arrears. Analysis
Section 45(1) of the Residential Tenancies Act 1986 (RTA) sets out the landlords responsibilities, and section 45(1)(bb) requires that the landlord insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (the Regulations). The Regulations require ceiling and underfloor insulation.
From 1 July 2019, all residential premises needed to be insulated to a minimum standard.
The regulations include some exceptions. Premises do not have to be insulated, if an experienced professional installer of insulation cannot access the location to install the installation without carrying out substantial building work, or causing substantial damage to the premises, or if it presented a health and safety risk to install the installation (Regulation 18). But that is not relevant here, the space under the house is generous, and there is no doubt insulation could have been installed. In fact the insulation has recently been installed, proving an installation was possible.
Failing to comply with section 45(1) is deemed in the RTA to be an unlawful act, meaning exemplary damages can be ordered.
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, which for a breach of section 45 is $7,200.00
In this case I have determined that exemplary damages should be ordered. There is no doubt that the breach was committed intentionally, the landlord has accepted that to be the case. The effect of the unlawful act is that the tenant has lived in premises that do not have underfloor insulation, and it can be accepted that would have meant the premises were colder than they would otherwise have been. There is a strong interest for tenants and the public generally that tenancies are warm and comply with the necessary legal criteria. It would be just to make an award.
Overall I have determined that a reasonable level of exemplary damages would be $1,000. I have taken into consideration what the likely impact would have been for the occupants of the house, and also the fact that the landlord has since had underfloor insulation installed, and the landlord’s recognition of his breach.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression, the landlord has not. However because the tenant has not been wholly or substantially successful in the proceeding, taking into account both claims, there is no basis for the Tribunal to order name suppression.

Order

Michael Ralph Emerson is granted possession of the premises at 5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473 immediately.
Michael Ralph Emerson must pay Gabrielle Samantha Bradley $1,000.00 immediately, being exemplary damages for failing to provide underfloor insulation.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant. The landlords seeks a possession order and compensation for damage, the tenant seeks orders around an absence of underfloor insulation.
Both parties appeared at the hearing today in Thames.
The tenancy agreement has been provided, and records the landlord as Mike Emerson, and the tenant as Gabrielle Bradley. The tenancy commenced on 3 October 2022, and is a periodic tenancy.
It is also relevant to note that the Tribunal convened a telephone hearing as set out in an order from Mr Greene dated 13 September 2023. In that order, Mr Greene ordered the tenant to pay rent arrears of $2,800.00, and a conditional termination order was made if the payment was not made. Mr Greene noted that “the landlord has served a termination notice for the tenancy to end on 10 October 2023”, and directed that a hearing be scheduled after 16 October 2023, that being a date after possession had been returned to the landlord, to consider the remaining claims.
A hearing was then scheduled for today, 13 December 2023, in Thames. The parties confirmed that the tenant was still in possession of the tenancy. The landlord confirmed that the only outstanding orders he was seeking was a possession order and for the payment of compensation for damage, and the tenant confirmed her only claim was around insulation.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

LANDLORDS CLAIMS

Possession order

The landlord seeks a possession order. The landlord relies on a termination notice dated 6 August 2023, which advised the landlord required possession of the premises so that he could reside in the premises himself. The notice required possession to be returned on 10 October 2023.
Text messages were exchanged by the parties extending the possession return date to 16 October 2023. But as I will discuss shortly, the tenant considered there was a further extension from the landlord to an indeterminate date.
The landlords position is the tenancy was lawfully terminated by notice by notice on 6 August 2023.
In response the tenant says that there was a property inspection where the landlord verbally agreed she could stay longer and would put this in writing but never did. Otherwise the tenant agreed that she did receive the 6 August 2023
The landlord responded that he “definitely, 100%” did not verbally agree to extend the tenancy. Analysis
There is no suggestion from the tenant that the notice terminating the tenancy was invalid, certainly one of the grounds landlord can terminate a periodic tenancy on notice, is when the landlord is to live on the premises him or herself, as is the case here.
Therefore, the tenancy would have terminated on 10 October 2023, but I can see that the landlord agreed to a short extension of the termination date, to 16 October 2023. Therefore, on 16 October 2023, the tenant needed to return the premises to the landlord.
However the tenant says that there was a verbal approval given by the landlord for the tenancy to be extended, but the tenant did not state what date the extension would have been to, only that the landlord said he would put it in writing, but no such written extension was ever provided. The response from the landlord, is simply to the extent that such a verbal statement did not happen.
On balance the tenant has not convinced me that the landlord agreed to renew the tenancy, extend the tenancy end date, or withdraw the notice. In fact, I can see that the landlord filed his first application with the Tribunal on 12 October 2023, and has recorded in that application: Tenants have not vacated the property as per the termination notice.
It makes no sense to me why the landlord would have recorded that in the application to the Tribunal, on 12 October 2023, if he had within only a day or so agreed to the tenant staying in the premises.
On the evidence available I find the tenancy ended on 16 October 2023, the landlord now seeks a possession order, and given the tenant remains in possession of the tenancy, the possession order is granted. Damage claim
The landlord has also filed a claim for damage and compensation to the tenancy. I can see from the evidence on the file that after the landlord filed that application, the tenants have undertaken some work at the Tenancy, so the nature of the landlords claim would be quite different to what it was initially. In any event, the landlord recognised at the hearing today that this claim would be premature, and I agree that is the case. Normally damage claims are determined once possession is returns to the landlord, the landlord has undertaken the necessary work, and established the costs.
I will accordingly make no orders in relation to the damage claim, but confirmed to the landlord at the hearing today that if there are any costs incurred when possession is returned, he may file a fresh application with the Tribunal, and those will be considered at a later hearing.

TENANTS CLAIM

The sole claim from the tenant related to there being no underfloor insulation. The tenant provided photographs showing that there is no insulation under the house.
The tenants position is that the premises are about one metre off the ground (a suspended timber floor), and that over the winter the premises were draughty and cold, because there was no underfloor insulation.
The landlord agrees that there was no insulation installed under the house, noting it has since been installed. Mr Emerson advised that the house was previously his family home. Mr Emerson set out the background for how the tenancy came about, and the intention to have rented the premises to help get the tenant back on her feet. Otherwise the landlord notes there is a wood burner fireplace and the house is carpeted throughout.
I asked the landlord why he had recorded so specifically in the tenancy agreement that there was “Underfloor -Polystyrene Insulation R2”. The landlord was frank, and acknowledged that this information was wrong, as he knew there was no underfloor insulation. The landlord confirmed that he knew that in order to rent the tenancy there needed to be insulation, hence that information was put on the tenancy agreement. The landlords position is that the rent was set low, and he had not pursued the balance of the rent arrears. Analysis
Section 45(1) of the Residential Tenancies Act 1986 (RTA) sets out the landlords responsibilities, and section 45(1)(bb) requires that the landlord insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (the Regulations). The Regulations require ceiling and underfloor insulation.
From 1 July 2019, all residential premises needed to be insulated to a minimum standard.
The regulations include some exceptions. Premises do not have to be insulated, if an experienced professional installer of insulation cannot access the location to install the installation without carrying out substantial building work, or causing substantial damage to the premises, or if it presented a health and safety risk to install the installation (Regulation 18). But that is not relevant here, the space under the house is generous, and there is no doubt insulation could have been installed. In fact the insulation has recently been installed, proving an installation was possible.
Failing to comply with section 45(1) is deemed in the RTA to be an unlawful act, meaning exemplary damages can be ordered.
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, which for a breach of section 45 is $7,200.00
In this case I have determined that exemplary damages should be ordered. There is no doubt that the breach was committed intentionally, the landlord has accepted that to be the case. The effect of the unlawful act is that the tenant has lived in premises that do not have underfloor insulation, and it can be accepted that would have meant the premises were colder than they would otherwise have been. There is a strong interest for tenants and the public generally that tenancies are warm and comply with the necessary legal criteria. It would be just to make an award.
Overall I have determined that a reasonable level of exemplary damages would be $1,000. I have taken into consideration what the likely impact would have been for the occupants of the house, and also the fact that the landlord has since had underfloor insulation installed, and the landlord’s recognition of his breach.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression, the landlord has not. However because the tenant has not been wholly or substantially successful in the proceeding, taking into account both claims, there is no basis for the Tribunal to order name suppression.

Tenancy Tribunal case 4711109 — Rent arrears at 5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473

At a glance

Tenancy Tribunal case 4711109 — Rent arrears at 5 Pohutukawa Avenue, Kaiaua, Kaiaua 2473

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions