Published tribunal order
Tenancy Tribunal case 4727641 — Exemplary damages at 18 Rochdale Street, Otautau, Otautau 9610
Decided 19 Apr 2024 · Published 19 Apr 2024 · Application 4727641
Tenant favoured
- Exemplary damages
- Smoke alarms
Order
- Kim Aliu and Mutala Aliu must pay Rebecca Moira Harris $700.00 immediately as calculated in the table below.
Reasons
- Both parties attended the hearing by teleconference.
- Ms Harris, claims that the landlord has breached a number of obligations under the Residential Tenancies Act. I shall deal with each claim separately. Terminating the Tenancy when not entitled to
- Ms Harris claims that the landlord has breached their obligations under section 60AA.
- Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- The landlord provided notice on the basis of selling the home. The home was used to house their staff (on the is occasion Ms Harris) who worked at their business. The business was for sale at the time. The employment agreement provided for the tenancy to come to an end within a time frame at the end of the employment.
- Ms Harris claims that the house was advertised for rent again and not sold, even though the business had sold. She claims that the landlord had no intention of selling the property. The property is now on the market for sale.
- The landlord claims that they had every intention of selling and had a market appraisal carried out. They then looked at another business venture and following financial advice kept the home for a short period of time however it is now for sale.
- Having heard from the parties and considered the evidence on this point I do not accept that there is sufficient evidence to find that they have committed an unlawful act in breach of this section. Failure To Lodge the Bond
- Ms Harris claims that the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord accepted and apologised for failing to lodge the bond.
- 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.
- Having heard from both parties and the landlord’s explanation, it is appropriate to make an award for exemplary damages accordingly. Failed to give chattels list
- The tenant claims that the failure of the landlord to provide a list of chattels in the Residential Tenancy’s agreement is a breach of the Act and that she should be compensated. Both parties signed the agreement, and the chattels were not listed. If chattels are provided it makes sense to protect each other’s position that the condition of the chattels is agreed to by listing them at the commencement of the tenancy. However, a failure to do so is not an unlawful act of the landlord. This is not a breach and therefore this part of the claim is dismissed. There is no evidence that this was mentioned at the time of entering the tenancy. Failed to Provide smoke alarms
- Ms Harris claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
- 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.
- The landlord provided a small alarm that was left at the property. I find that they needed to take more care ensuring that the alarms were in working order and fixed appropriately and complied with the regulations.
- 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.
- The tenant accepted that there was one and needed to put batteries in it.
- There needed to be more care taken in relation to ensuring there was adequate smoke alarms at the property.
- Given the evidence before me I award damages to reflect this. Failed to provide a copy of the Residential Tenancies Agreement
- Ms Harris claims the landlord has not ensured the tenancy agreement was provided to the tenant.
- A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
- Ms Harris claims to have not received a copy of the agreement for some months into the tenancy. The landlord claims that the agreement was left with the tenant to sign and copy and return to the landlord. Further when she requested a copy it was then given to her.
- On the evidence there is insufficient evidence to suggest the landlord failed to carry out their obligations that would result in an amount of damages being awarded and this part of the claim is dismissed. Landlord entered the property without notice
- Ms Harris claims the landlord has entered the premises without consent or notice on four different occasions.
- A landlord may not enter the premises during the tenancy except 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) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- Ms Harris was aware that work was going to be carried out at the property before she moved in. Some work was completed whilst she was working for the landlord at their business and the work had commenced before the tenant moved in.
- The landlord gave evidence that the tenant was always notified when the landlord knew of the work man’s due time of arrival. Although given the small town dynamics they themselves may not get much notice.
- Ms Harris claims for four alleged breaches.
- The first claim is that the landlord must have entered the property to sew grass seeds as the grass has grown and she was unaware that they were going to do this This was needed following the work that was carried out with the digger mentioned below.
- The second breach was in relation to the outside work and digger that was used.
- The third breach was in relation to the plumber that needed to attend for an urgent matter that was identified at a property inspection. The plumber arrived that day and cleaned up the following day. This was an emergency situation that prevented the waterpipes into the house ‘exploding’.
- The fourth was in relation to removal of plants that occurred without the tenant’s knowledge, all in relation to the work that was carried out at that time.
- In relation to all matters, there is no evidence that any of the allege breaches warrant an award of compensation. The tenancy commenced on 1 November 2022. The alleged breaches occurred in November, and the plumber incident in February 2023. There is insufficient evidence to confirm that this caused a complaint from the tenant. The tenant resigned from her position at work in March 2023 having received notice of the tenancy coming to an end. There was no evidence of issues up to that point with the tenancy itself.
- As a result, I am not satisfied on the evidence that there has been a breach by the landlord and the claim is dismissed.