What was the outcome of Tenancy Tribunal case 4730609?

The tribunal order states: Abdul Zavir Imran and Sadhana Devi to pay Tamaki Real Estate Limited Stephen

How much money was awarded in case 4730609?

Compensation: $50.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Water Rates: $330.90 awarded to landlord

What type of tenancy dispute was case 4730609?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4730609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9927227-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4730609?

The tribunal order states: Abdul Zavir Imran and Sadhana Devi to pay Tamaki Real Estate Limited Stephen

How much money was awarded in case 4730609?

Compensation: $50.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Water Rates: $330.90 awarded to landlord

What type of tenancy dispute was case 4730609?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4730609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9927227-Tenancy_Tribunal_Order.pdf.

172A Barrack Road, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 4730609 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4730609 — net $780.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages failure	$500.00		Exemplary damages failure
Water rates	$330.90		Water rates
Water compensation		$50.00	Water compensation
Total award	$830.90	$50.00
Net award	$780.90
Bond	$2,400.00
Total payable by Tenant to Landlord	$780.90

Claims and awards in Tenancy Tribunal application 4730609 — net $780.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages failure	$500.00		Exemplary damages failure
Water rates	$330.90		Water rates
Water compensation		$50.00	Water compensation
Total award	$830.90	$50.00
Net award	$780.90
Bond	$2,400.00
Total payable by Tenant to Landlord	$780.90

Order

Abdul Zavir Imran and Sadhana Devi to pay Tamaki Real Estate Limited Stephen Hall $780.90 from the bond, calculated as shown in table below: The Bond Centre is to pay the bond of $2,400.00 (5107419-005) immediately apportioned as follows: Tamaki Real Estate Limited: $780.90 Abdul Zavir Imran and Sadhana Devi: $1,619.10

Reasons

The Tribunal must consider applications filed by both the Tenants, and Landlord. The tenancy has now ended, that there are various disputes that have arisen in relation to the period toward and around the end of the tenancy.
Both parties appeared at the hearing today, on 7 February 2024.

BACKGROUND

The parties entered into a fixed term tenancy agreement for Tenancy to commence on 22 May 2021. The fixed term period ended on 22 November 2021, and the Tenancy rolled into a periodic tenancy at that point.
The tenancy agreement records the Landlord as Tamaki Real Estate Limited. The two co-Tenants are Sadhana Devi and Abdul Imran.
On 27 October 2023, the Landlord contacted the Tenants to advise that “The Property you are renting is now for sale”, and advising that they would be contacted by the listing Real Estate agent.
On 30 October 2023, the Tenants emailed the Landlord acknowledging the advice of the sale, and confirming they had spoken with the listing agent. The Tenants suggested to the Landlord that it provides a 90 day notice to end the tenancy, otherwise the Tenants state: Given our personal circumstances, we are unable to accommodate open homes at any time unless an adjustment is made to compensate us. If we are to compromise our daily lives during the next 2 to 3 months during this process, we expect some compensation to accommodate and cater for all the compromises we are required to make with our daily routines. We are happy to provide a detailed account of all the compromises we will be required to make in the event of required.
Having heard from the Landlord, it is clear that the Landlord disagreed that any compensation should be provided to the Tenants for the open homes. The Landlord took the communication as a confirmation that the Tenants refused access to the property for the purpose of an open home.
On 31 October 2023 the Tenants emailed the Landlord confirming they did not consent to open homes for the following reasons: a. The Tenants work fulltime from Monday to Saturday, so did not have time to assist with open homes. b. Sunday is there family time, and they were not willing to make inroads on that time without compensation. c. Security concerns with strangers coming into the house. d. Concerns around privacy breaches given Ms Devi works from home. e. Concerns around the impacts on routines with the Tenants 2 year old child.
On 1 November 2023 the Landlord filed this application with the Tribunal in part around the perceived refusal to allow access for open homes.
Following a mediation with Tenancy Services, on 27 November 2023 the parties agreed that there would be a $50.00 week rent reduction, and in return the Tenants would allow open homes to be conducted.
The Tenants state that subsequently the owners (not the Landlord) met with them, and the Tenants agreed that the owners could proceed with open homes at any time with the $50.00 per week reduction in rent.
On 23 November 2023 the Tenants gave notice terminating the tenancy, with the last date of the tenancy being 21 December 2023. The Landlord confirmed receipt of the notice.
The Tenants state that they then spoke with the Owner who agreed that they could stay in the premises if they could not find another premises, but as I will set out below the evidence from the Owner contradicts that.
When the Tenants were unable to secure another tenancy, on 16 December 2023 the Tenants requested to withdraw the termination notice, but the Landlord declined to agree to a withdrawal, the Landlord confirmed that the tenancy needed to be returned on 21 December as per the Tenants notice.
Is it turned out, the Tenants were unable to secure an alternate rental property, and therefore failed to move out on 21 December 2023, rather they vacated the premises around one month later. The Tenants advised that when they could not secure a rental property, they needed to purchase a dwelling to have somewhere to live, but that was not the original plan to purchase at this time. Owners evidence
Mr Gamage is the owner of the premises, and attended the hearing and gave evidence under promise.
Mr Gamage advised that he was happy for the notice to end the tenancy to be accepted. When the Tenants requested to withdraw the notice of termination, the Owner declined extending the tenancy. The Owner advised there were significant financial reasons they needed to sell the premises, because they could not afford the interest payments that needed to be made on the mortgage, therefore there was some urgency to sell the premises.
The Owner advised that they accepted the first offer to purchase the premises. The settlement date was to be 28 days after the date the premises became unconditional.
The Owner was firm in his evidence that when he met with the Tenants in late November, that he did not agree they could stay longer in the tenancy if the Tenants needed it. However the Owner did confirm that when meeting with the Tenants in November 2023 that there was an agreement that the rent would drop $50.00 per week to compensate for inconvenience around open homes, and the Landlord was then able to undertake open homes when he wanted.
Ms Devi then asked the Owner about a meeting in January, where the Landlord agreed to withdraw the application to the Tribunal if they moved out within 14 says. The Owner disputes that he made that agreement with the Tenants. The Owner states he was relying on the Landlord for the management of the premises.

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 CLAIM

Exemplary damages for failing to allow entry – Section 48

The Landlord states that on 30 October 2023 the Tenants said they would not allow entry to the premises for the viewings, which the Landlord submits to be a breach of section 48 of the RTA
The Landlord confirmed that once the Tenants had requested compensation, the Landlord to approve open homes, the Landlord did not enter into any negotiation with the Tenants, he considered it to be blackmail.
Mr Imran advised that he only gets Sundays to spend with his family, and they don’t rent the property in order to ‘entertain’ purchasers for the Landlord. The Tenants do not consider it to be unreasonable to be expecting modest compensation for their inconvenience. Analysis
Section 48 is the provision of the RTA that deals with a Landlord’s right of entry to the premises. The section confirms that the Landlord is able to give notice to enter the premises for various reasons, but that does not include the purpose of open homes. Rather this fall into subsection 3 which confirms: (3) With the prior consent of the Tenant, the Landlord may enter the premises at any reasonable time for the purpose of showing the premises— (a) .. (b) to prospective purchasers; or (c) ... (3A) For the purposes of subsection (3), the Tenant— (a) may not withhold his or her consent unreasonably; and (b) may make the consent subject to any reasonable conditions.
What those provisions mean, is that a Landlord can only enter the premises if the Tenants consent to that entry, but the Tenants cannot unreasonably withhold that consent, but the Tenants can make entry subject to reasonable conditions.
There is no doubt that operating an open home in a tenancy, is an extreme invasion on the usual expectation of privacy, and quite enjoyment for a Tenant. Normally when open homes are run, strangers are invited to attend the premises, and they walk through and inspect the dwelling with minimal if any supervision.
In this case, I have seen no evidence to show that the Tenants have plainly refused to allow open homes, rather the Tenants wish to be compensated for that, which seems entirely reasonable to me. The Tenants are paying rent to the Landlord in order to be able to have quiet enjoyment of their tenancy, in fact the law requires that the Landlord to provide quiet enjoyment. No doubt the Landlord would expect the Tenants to have the premises clean and tidy for the purpose of the open homes, notwithstanding there may be an expectation that the Tenants are not at home at the time. It was entirely within the Tenants right to require compensation for that, or to put that another way in statutory terms, a condition of the right of entry was to be reasonably compensated for it.
What subsequently happened is that the Tenants agreed to allow open homes to proceed for compensation of $50.00 per week, which in my view is a good deal for the Landlord.
This application is dismissed, because I am not persuaded the Tenants have breached their obligation to the Landlord, and that I do not consider that the Tenants have unreasonably withheld consent for open homes to be conducted at theTenant’s home. Exemplary damages and compensation for failing to vacate the premises – section 40
The Landlord’s position is that the Tenants had given notice ending the tenancy, which required them to vacate the premises on 21 December, and they failed to do so. The Landlord considers that the owner has lost $6,000.00 in Air BnB bookings that could have been made after the Tenants were supposed to move out.
I raised with the Landlord that there is no evidence before the Tribunal that the Landlord has lost $6,000 in Air BnB bookings. The Landlord said this was what the Owner advised him.
The Tenants said that the Landlord had not earlier raised that the premises were to be rented on Air BnB
The Tenants accepted that at the hearing that there is no legal obligation on the Landlord to accept the withdrawal of the notice, but state that in that period they had met with the Owner and were given the impression that they could stay in the tenancy. Analysis
The Tenants accept that they gave notice ending the tenancy, which require the premises to be returned to the Landlord on 21 December 2023. The Tenants also acknowledge that there was no legal obligation on the Landlord to accept a withdrawal of the Tenants termination notice.
However the Tenants stated that the Owner had agreed they could stay longer, but there are two problems that the Tenants face with this argument. a. Firstly I am not persuaded there is sufficient evidence that the Owner did in fact say they could stay as long as they needed. The Owners firm evidence at the hearing was that he wanted the tenancy to end, and to be returned to him so that the premises could be sold. There is insufficient evidence that they Owner did agree to an extension of the tenancy. b. Secondly, even if the Owner had agreed (and am not persuaded that he did), the Owner is not the Landlord. The Landlord is Tamaki Real Estate Limited. The Tenants have not suggested that the Landlord approved any extension.
Section 40 of the RTA sets out the Tenants responsibilities, and that includes that on the termination of the premises, they must “quit the premises”, meaning move out and return possession to the Landlord. I am satisfied that the Tenants failed to vacate the premises as they were required to do, so have breached their obligation to the Landlord under section 40. The Tenants have not identified a reasonable excuse for this breach. Subsection 3A confirms that failing to quit the premises without reasonable excuse is an unlawful act, meaning that 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.
In this case I find that exemplary damages should be ordered. I consider the Tenants breach was intentional. The Landlord had squarely refused to accept the withdrawal of the notice, so the Tenants would have been well aware they were breaching the termination notice. The effect for the Landlord is that the premises had not been returned as the Landlord reasonably expected. I accept that would have impacted the marketing of the premises for sale at least. There is a strong interest for Landlords, Tenants and the public generally that when existing Tenants give notice ending the tenancy on a certain date, that they follow through with returning the premises then. I consider it would be just to make an order.
The maximum level of exemplary damages for failing to quit the premises is $1,500.00. And this case I consider that an order at one third of the maximum would be indicated. There is no evidence before the Tribunal that these Tenants have a history of such breaches, and I cannot see any aggravating factors that would argue for a higher level of award.
Finally I decline to award compensation for potential Air BnB losses. There is no evidence before the Tribunal supporting any such loss. Even then, the landlord has not suggested that it would have incurred this loss, the loss was claimed to have been incurred by the Owner who is not a party to the tenancy contract. Water rates
The Landlord seeks outstanding water rates from October 2023 to January 2024, those charges totalling $330.90, but the Landlord proposes to reduce that by $50.00 to take account of water used with water blasting at the premises, and also from a water leak.
The Tenants state that there was a water leak at the premises. Analysis
The Landlord produced the original water invoices at the hearing, and I have calculated the above amount myself, and confirm the total claimed is correct. The Tenants accept they have not made the payment, and they also accept that the water used by them needs to be paid by them.
The Landlord has established that the Tenants owe $330.90 for water used at the premises and that is ordered. I will address compensation for water below separately. Damage to premises
At the hearing the landlord requested compensation for damage to the premises. The landlord confirmed that they owner has not charged the landlord for this damage, so the landlord has strictly incurred no loss. Further this was not claimed with original application, and so no claim has been served on the tenants.
As I confirmed, should the landlord in fact incur any charge for damage, at that point it may file an application with the Tribunal, but at this time there is no loss so the claim is dismissed.

TENANTS CLAIMS

Unlawful entry

The Tenants states that during the course of the tenancy, the Owner would often come to the premises to do maintenance. Ms Devi advised that she would generally be at home, and on a number of occasions, the owner would be outside the premises, or come to the door, but the Tenants confirmed that the owner or Landlord has never come inside the premises without permission.
The Tenants confirm that there was no harassment. Analysis
Again the Landlords right of entry to the premises is set out in section 48 of the RTA. For the most part the Landlord is required to give notice to enter the premises, other than in an emergency. However, subsection 7 confirms that for the purpose of that section, “premises” does not include “facilities”. The term “facilities” is defined in the RTA as including land, lawns and gardens. That means, the Landlord does not need to give notice to come onto the land of the tenancy per se, but would need to give notice if the Landlord wished to enter inside the premises – the dwelling.
The Tenants also raised the question of quiet enjoyment with the Landlord going on to the grounds. Again as I advised that the hearing, exemplary damages can be ordered if the Landlord is found to have harassed the Tenants, but the Tenants confirm there is no suggestion that harassment has occurred in this case.
Accordingly the Tenant’s claim for unlawful entry must be dismissed. Healthy Homes Standards
The Tenants state that the premises had draughts through the house, and that it was very cold, meaning they needed to keep a heater running to keep the premises warm. The Tenants said there was no heat pump, and the premises would be mouldy.
In response the Landlord states there is a special condition in the tenancy agreement that the Tenants keep the premises ventilated, and when he has been to the premises, the windows have been closed, he estimated that he had been there about a half dozen times over the tenancy. The Landlord states that there are extractor fans in the kitchen and bathroom. The Landlord states that there was no report of draughts or an absence of heat pumps. Analysis
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. At the hearing I had incorrectly advised that I considered the Landlord had breached the heating standard. However on review of the documents, I am satisfied that this was not the case. The tenancy commenced in May 2021, which is before the start date for the HHS applying. Because the tenancy commenced before 1 July 2021, that means that the tenancy would only need to be HHS compliant on 1 July 2025.
I am satisfied that the Landlord has not breached its HHS obligation to the Tenants, so this claim must be dismissed. Water overpayment and compensation
At the hearing the parties agreed that $50.00 compensation should be provided to the Tenants to compensate for water used in water blasting the premises, and for a water leak. That is accordingly ordered by consent.

Tenancy Tribunal case 4730609 — Exemplary damages at 172A Barrack Road, Mount Wellington, Auckland 1060

At a glance

Tenancy Tribunal case 4730609 — Exemplary damages at 172A Barrack Road, Mount Wellington, Auckland 1060

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions