What was the outcome of Tenancy Tribunal case 4771179?

The tribunal order states: Sarah Maria Kersicla and Mark Anthony Morton to pay Yvonne Ong and Lee

How much money was awarded in case 4771179?

Cleaning: $800.00 awarded to tenant; Compensation: Failure to replace hea…: $250.00 awarded to landlord; Property Damage: $4,800.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to landlord; Property Damage: $600.00 awarded to tenant; Insulation Compliance Statement: $600.00 awarded to tenant; Plaster & Paint Hallway/Bathroom Doo…: $100.00 awarded to tenant; Property Damage: $1,044.75 awarded to landlord; Property Damage: $650.00 awarded to tenant; Re-Instate Small Toilet Door: $130.00 awarded to landlord; Re-Sand And Varnish Wooden Stairs: $250.00 awarded to tenant; Removal Of TV Bracket And Reinstatin…: $100.00 awarded to tenant; Rent Arrears: $7,000.00 awarded to landlord; Replace furnishings: light fittings…: $257.35 awarded to landlord; Standard: $1,400.00 awarded to landlord

What type of tenancy dispute was case 4771179?

The primary dispute was Rent arrears. Related themes: Property damage, Healthy homes.

Where can I read the official tribunal order for case 4771179?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904288-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4771179?

The tribunal order states: Sarah Maria Kersicla and Mark Anthony Morton to pay Yvonne Ong and Lee

How much money was awarded in case 4771179?

Cleaning: $800.00 awarded to tenant; Compensation: Failure to replace hea…: $250.00 awarded to landlord; Property Damage: $4,800.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to landlord; Property Damage: $600.00 awarded to tenant; Insulation Compliance Statement: $600.00 awarded to tenant; Plaster & Paint Hallway/Bathroom Doo…: $100.00 awarded to tenant; Property Damage: $1,044.75 awarded to landlord; Property Damage: $650.00 awarded to tenant; Re-Instate Small Toilet Door: $130.00 awarded to landlord; Re-Sand And Varnish Wooden Stairs: $250.00 awarded to tenant; Removal Of TV Bracket And Reinstatin…: $100.00 awarded to tenant; Rent Arrears: $7,000.00 awarded to landlord; Replace furnishings: light fittings…: $257.35 awarded to landlord; Standard: $1,400.00 awarded to landlord

What type of tenancy dispute was case 4771179?

The primary dispute was Rent arrears. Related themes: Property damage, Healthy homes.

Where can I read the official tribunal order for case 4771179?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10904288-Tenancy_Tribunal_Order.pdf.

54 Glanmire Road, Newlands, Wellington 6037 Tenancy Tribunal Case 4771179 — Rent arrears

Claims and awards in Tenancy Tribunal application 4771179 — net $1,432.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 20.4.2024	$7,000.00		Rent arrears to 20.4.2024
standard	$1,400.00		standard
Compensation: Failure to replace heat pump remote	$250.00		Failure to replace heat pump remote
Exemplary damages: Failure to provide complete HHS	$250.00		Failure to provide complete HHS
Window repairs	$1,044.75		Window repairs
Replace furnishings: light fittings & bulbs	$257.35		Replace furnishings: light fittings & bulbs
Re-instate small toilet door	$130.00		Re-instate small toilet door
Exemplary damages: Breach of under floor insulation		$4,800.00	Breach of under floor insulation
Exemplary damages: Breach of ventilation standard		$1,000.00	Breach of ventilation standard
Exemplary damages: Providing a false or misleading		$600.00	Providing a false or misleading
insulation compliance statement		$600.00	insulation compliance statement
Cleaning		$800.00	Cleaning
Removal of TV bracket and reinstating wall		$100.00	Removal of TV bracket and reinstating wall
Repair stair handrail		$650.00	Repair stair handrail
Re-sand and varnish wooden stairs		$250.00	Re-sand and varnish wooden stairs
Plaster & paint hallway/bathroom door		$100.00	Plaster & paint hallway/bathroom door
Total award	$10,332.10	$8,900.00
Net award	$1,432.10
Bond	$2,520.00
Total payable by Tenant to Landlord	$1,432.10

Claims and awards in Tenancy Tribunal application 4771179 — net $1,432.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 20.4.2024	$7,000.00		Rent arrears to 20.4.2024
standard	$1,400.00		standard
Compensation: Failure to replace heat pump remote	$250.00		Failure to replace heat pump remote
Exemplary damages: Failure to provide complete HHS	$250.00		Failure to provide complete HHS
Window repairs	$1,044.75		Window repairs
Replace furnishings: light fittings & bulbs	$257.35		Replace furnishings: light fittings & bulbs
Re-instate small toilet door	$130.00		Re-instate small toilet door
Exemplary damages: Breach of under floor insulation		$4,800.00	Breach of under floor insulation
Exemplary damages: Breach of ventilation standard		$1,000.00	Breach of ventilation standard
Exemplary damages: Providing a false or misleading		$600.00	Providing a false or misleading
insulation compliance statement		$600.00	insulation compliance statement
Cleaning		$800.00	Cleaning
Removal of TV bracket and reinstating wall		$100.00	Removal of TV bracket and reinstating wall
Repair stair handrail		$650.00	Repair stair handrail
Re-sand and varnish wooden stairs		$250.00	Re-sand and varnish wooden stairs
Plaster & paint hallway/bathroom door		$100.00	Plaster & paint hallway/bathroom door
Total award	$10,332.10	$8,900.00
Net award	$1,432.10
Bond	$2,520.00
Total payable by Tenant to Landlord	$1,432.10

Order

Sarah Maria Kersicla and Mark Anthony Morton to pay Yvonne Ong and Lee Yeoh $1,432.10 from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $2,520.00 (3459599-014) immediately apportioned as follows: Yvonne Ong and Lee Yeoh: $1,432.10 Sarah Maria Kersicla and Mark Anthony Morton: $1,087.90
The claims noted as withdrawn in paragraph 131 of the

Reasons

are withdrawn at the landlords’ request.

All other claims are dismissed. DescriptionLandlordTenant Rent arrears to 20.4.2024$7,000.00 Exemplary damages: Breach of under floor insulation standard $4,800.00 Exemplary damages: Breach of ventilation standard (extractor fans) $1,400.00 Exemplary damages: Breach of moisture ingress standard (ground moisture barrier) $1,000.00 Compensation: Failure to replace heat pump remote $250.00 Exemplary damages: Failure to provide complete HHS compliance statement $250.00 Exemplary damages: Providing a false or misleading $600.00 insulation compliance statement Exemplary damages: Contracting to contravene/evade the Act $600.00 Cleaning$800.00 Window repairs$1,044.75 Replace furnishings: light fittings & bulbs$257.35 Removal of TV bracket and reinstating wall$100.00 Repair stair handrail$650.00 Re-sand and varnish wooden stairs$250.00 Re-instate small toilet door$130.00 Plaster & paint hallway/bathroom door$100.00 Total award$10,332.10$8,900.00 Net award$1,432.10 Bond of $2,520.00$1,432.10$1,087.90 Reasons:
Both parties attended the hearing.
The tenants filed an application and the landlords filed a cross application, both seeking compensation and exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The claims being pursued by each party are summarised in the previous order dated 26 March 2024. Burden of proof
Each party has the burden to prove their respective claims. The standard of proof required is the usual civil standard of ‘on the balance of probabilities.’ Put another way, the applicant party must persuade me that what he or she says is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. In deciding any claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
Both parties filed a wealth of evidence. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Preliminary issues

Who are the tenants?

Mark Morton lived at the property with Sarah Kersicla but did not sign any of the tenancy agreements between the parties. However, I am satisfied on the evidence that while only Ms Kersicla signed the various tenancy agreements, Mr Morton was actively involved in negotiating the terms of all the agreements with the landlord. He also lived at the premises and was the prime contact for communications between the parties, with the landlord and Mr Morton often communicating directly regarding rent payments and other issues over the course of the tenancy. Prior to the start of the tenancy, the landlord sent the previous tenant and Mark Morton and Sarah Kersicla an email on 8 March 2021 referring to “Sarah/Mark’s lease.” Based on all the available evidence including multiple written communications between the parties, I have no difficulty finding that Mark Morton was a tenant.

Was the tenancy renewed or extended?

The next issue to determine is whether tenancy agreements between the parties were renewals or extensions. The determination has a direct bearing on the tenants’ claims that the landlord breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy but for private rentals: a. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or b. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy; and c. All private rentals must comply by 1 July 2025.
In summary, the 90-day and 120-day compliance timeframes will only apply to new or renewed tenancies entered after the dates specified. Tenancies entered before 1 July 2021 that are extended after that date will have until 1 July 2025 to comply with HHS.
Regardless of the applicable compliance dates under the HHS, the landlord was also required to comply with insulation standards under the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2019 (SAI) in force from 1 July 2019.
The RTA and HHS do not define or clarify the difference between a renewal and an extension of a tenancy agreement. However, the terms have been considered in the context of commercial leases and contract law cases. An extension of a lease means any covenants previously agreed to on the lease carry over to the ‘extended’ lease and privity of contract remains. A renewal of a lease acts as an entirely new lease where all previous agreements between the parties on the previous lease are no longer in force. A renewal essentially acts as an entirely new agreement between the lessor and lessee.
The leading New Zealand Land Law textbook by Elizabeth Toomey 1 discusses the fundamental difference between the two terms. The question is whether the parties intended that the original lease should be either extended or whether a new lease should be arranged at the end of the original lease agreement. Toomey also referred to a passage in Halsbury’s Laws of England, where the Court of Appeal in Wagener Ltd v Photo Engraver’s Ltd held: 2 “Where a lease contains an option to renew the lease the exercise of the option will ordinarily involve the creation of a new lease, and as regards the new lease there will be no privity of contract between the landlord and the original lessee.....;however, the right given to a tenant may be simply to extend the term, in which case privity of contract will endure between the parties, even during the extended term. The original lessor may sue either the original lessee or the assignee or both at the same time; but he can only obtain one satisfaction.”
As in any contract dispute, what the parties intended the terms of the contract to be, will prevail in contractual interpretation and each case must be assessed on its own facts. One of the main differences between a renewal and an extension is liability. If a lease is renewed, the parties no longer have privity of contract, and the lessee cannot be held liable for any liabilities on the previous agreement. Whereas, if a lease is extended, the parties are liable to privity of contract and all previous covenants in the lease are carried over to the extension. Tenancy agreements signed and findings on extension/renewal
The Landlord used the standard form Residential Tenancy Agreement available from the Tenancy Services website (the RTA standard form). Both parties have different versions of the tenancy agreements, but I have relied on the versions that have been originally signed. It appears that the landlord completed and provided all 11 pages of the first tenancy agreement including the insurance statement and the insulation statement information, although they did not sign the insulation statement. For subsequent tenancy agreements, it appears that the parties only completed pages 5 and 6 of the RTA standard form comprising the Tenant, Landlord and Tenancy details page and the signing page. At the hearing Ms Ong advised that the landlords typically only gave the tenants these two pages.
The landlords and Ms Kersicla signed two tenancy agreements at the start. The first agreement provided for a fixed term tenancy of almost 12 months 1 Toomey (ed) New Zealand Land Law (3 rd ed, Thomson Reuters, Wellington, 2017 at [48.R.8.13.1093)] 2 Toomey above n 1 referencing David N Clarke Halsbury’s Laws of England (4 th ed, Lexis Nexis 2006 at [389; cited in Wagener Ltd v Photo Engravers Ltd [1984] 1 NZLR 412 at 425 commencing on 2 May 2021 and to end on 30 April 2022 at a weekly rent of $630. This was signed and dated by both parties on 6 April 2021. However, a second agreement provides for a fixed term starting on 2 May 2021 and ending on a much earlier date 2 months later of 3 July 2021 at a weekly rent of $630. This second agreement is signed and dated by both parties on 2 May 2021. The front page of the agreement has a handwritten note that says: “This lease (2 months) is for bank and trial as proof that rent will be paid on time every Monday. If rent is paid on time (no late rent) the original lease 12 months stands.” Ms Ong and Ms Kersicla added their signatures and the date 2 May 2021 beneath this handwritten clause.
The landlord also explained, and it is evidenced by messages between the parties, that the landlord was under financial pressure from their bank to sell the premises unless rent was paid on time to cover their mortgage obligations. That is why they proposed a shorter fixed term as a trial.
The landlords also supplied evidence that they arranged for an HHS assessment of the premises in November 2020. They advised the tenants that the report identified three issues: extractor fans in the kitchen and bathroom to be installed and ducted to the outside; a ground moisture barrier to be installed and underfloor insulation upgraded. The landlords told the tenants they were not caught by the 90-day compliance timeframe but would do the work if the tenants wanted them to do so. The tenants advised that they did not require the work to be done. The landlord required them to confirm this in writing and prepared a handwritten statement which Ms Kersicla signed agreeing that the work did not need to be done for the duration of the tenancy.
Leaving aside the legality of the landlord requiring two tenancy agreements to be signed covering the same period and purporting to enforce one as a “trial period” (which I deal with later in this decision), the “first set of tenancy agreements” were signed before 1 July 2021 and the tenancy endured for the fixed term period to 30 April 2022. Therefore, I am satisfied that the landlord had until 1 July 2025 to comply with the HHS during this first fixed term period.
Prior to the end of the first fixed term, Ms Ong emailed Ms Kersicla and Mr Morton on 9 March 2022 as follows: “Mark mentioned to Lee that you are keen to stay on at the house. As you know everything has gone up including rents and an agent has been pestering us to list with them. So, unfortunately rent will increase by $50 per week.....The agent is promising to get us $700 pw but we have settled on new rent to be $680pw....Please can you let me know and we will pop in for you to sign the paperwork for the new weekly rent amount?”
Subsequently, the parties entered another RTA standard form agreement (completing pages 5 and 6 only) which does not record a new tenancy start date and only records that the fixed term is ending on 30 April 2023. It is signed by both landlords and Ms Kersicla on 26 March 2022 and records a rent increase to $680. On the front page of the landlord’s copy of the agreement, the landlord made a handwritten note stating: “As signed on Sat 26/3/22. No change to tenancy. To record increase rent pw only.”
There was no other evidence presented regarding communications between the parties leading up to signing of the tenancy agreement. The landlords say that they intended the lease to record a rent increase and to extend the end date of the lease to 30 April 2023. All other terms of the lease remained the same.
I find on the evidence that this was an extension of the tenancy, not a renewal. Other than a rent increase and an extension of the fixed term and tenancy end date, the parties and the terms of the tenancy remained the same. A rent increase is permitted by the terms of the original RTA standard form agreement and can be imposed unilaterally by the landlord provided the correct 60 days’ notice of the increase is given. In that sense it is a term that does not require the tenant’s consent before it can be imposed. Therefore, during this extension, it follows that the landlord was also not required to comply with the HHS until 1 July 2025.
The last RTA standard form agreement (pages 5 and 6 only) was signed by the parties and dated 25 February 2023, although the landlord later recorded in an email that the agreement was signed on 4 March 2023 after an inspection. This makes sense as there is evidence of the parties negotiating the terms of the agreement after 25 February. The tenant’s version of the agreement which has the original signatures of the parties says the tenancy would start on 23 April 2023 and end on 22 April 2024. The start date is a week before the then current fixed term was set to expire. On the landlord’s version of the agreement (which also appears to be originally signed) the start date was amended to 30 April 2023 and the end date was amended to 27 April 2024. However, the parties did not initial the amendments. The agreement also records a rent increase to $700pw. On the front page of the landlord’s copy of this agreement, the landlord has made a handwritten note which states: “To record rent increase only to $700pw. (All terms remain the same). Rent reduced from $750 to $700pw.”
Prior to this final agreement being signed, there is evidence of discussions concerning the terms of the tenancy moving forward. On 25 February 2023, Ms Kersicla emailed the landlord asking: “Are we signing another year’s tenancy?” The landlords replied on 26 February 2024 stating: “...Due to issues with paying rent on time, we thought you would move to a cheaper place. The average current rents for a similar 3-bedroom house is from $750pw. If you stay on, can you afford $700pw....but you also agree to reimburse for the cost of insulation underneath the house, extraction fans for kitchen and bathroom, replace broken windows, re-putty windows (this was promised to be done when you moved in), also Mark said he can get deal with any heat pump issues as he was a heat pump technician and get a replacement remote for heat pump. None of these things have been done.......Please confirm Saturday 11am 4/3/23 for an inspection. We will bring new lease for you to sign if you want to stay on and can reimburse us for the work separately.”
At some point, but it is not clear when, the landlord made a handwritten note on the above email which said: “I Sarah Kersicla confirm will do insulation and install fans for a kitchen & bathroom to get the house to standard so that the landlord will extend the tenancy for another year instead of selling.” This note is dated 25 February 2023 and has been signed by Ms Kersicla.
In a further email to the tenants on 27 February 2023 the landlord states: “Further to Mark’s phone call last night...you will both accept new rent at $700pw (not $750 as that’s too much increase). You also said NO WAY you will cover cost of materials (even for $700pw rent) for the underfloor insulation and extraction fans (& ducting) for the kitchen and bathroom. You will only provide labour (free).You said jobs don’t have to be done all at once and agreed best to start first with underfloor insulation. You said you can get trade discount for materials. The situation is that everyone wants to sell the house and the others had wanted to break the lease to sell the house last year (when rent was regularly not paid on time each week). If you want to renew for another year, it means underfloor insulation, extractor fans must be installed. Even though you said you won’t be using extractor fans etc, house is warm, and you open windows in bathroom and kitchen to vent out any moisture, this will be added cost. Sarah signed a statement that no need for all those things. We agreed as it’s only for one year and then house will be sold. As you want to renew lease for another year, these things must be done (no choice) .......”
The landlords claim that the tenants were to complete the insulation and extractor fan work in consideration for a reduced rent from $750 to $700 and another one-year fixed tenancy term. While not mentioned in emails, they say that the agreement also included the tenants installing a ground moisture barrier. The tenants argue that the work (which I refer to as the HHS work) was not in consideration for a rent reduction but for a one-year lease renewal.
While the tenancy agreement did not record the exact agreement reached regarding HHS work, it is not disputed that the landlords subsequently supplied the tenants with materials and Mr Morton completed the underfloor insulation work sometime in mid-2023 and installed a ground moisture barrier before the tenants vacated the premises in February 2024.
I am satisfied that additional terms were negotiated and agreed by the parties. Based on the wording of the landlords’ emails and the handwritten confirmation they prepared for Ms Kersicla to sign, I accept that the parties agreed that the tenants would carry out the HHS work in consideration for a further one-year fixed term tenancy and a weekly rent of $700, rather than $750. This was a new and significant change to the tenancy terms which required the mutual agreement of the parties. That being the case, I find that this agreement amounts to a renewal because there was an intention that both parties would be bound by the new terms of the agreement regarding completion of the HHS work. It follows that I find that the landlords were required to comply with the HHS within 120 days of the renewed tenancy.
While the final tenancy agreement recorded a start date of 24 April 2023, I accept that the effective start date was immediately after the previous fixed term expired on 30 April 2023. Therefore, I consider the effective start date of the renewal was 1 May 2023. This means that the landlord was required to comply with HHS by 30 July 2023. Background to the claims
Sarah Kersicla and Mark Morton were already living at the premises as flatmates of the previous tenant whose fixed term tenancy was ending on 1 May 2021. An agreement was reached that the previous tenant would move out on 20 March 2021 and sublet the premises to Ms Kersicla for the remainder of the term. Ms Kersicla and Mr Morton would then remain at the property pursuant to a new tenancy commencing on 2 May 2021. There were many emails between the parties at this time which discussed the terms of the arrangement.
The landlords, the previous tenant and Ms Kersicla and Mr Morton all met and agreed on a process between tenancies. A list of cleaning and repairs required at the end of the previous tenancy was prepared. It was also agreed that Mr Morton would prepare a further list of issues that he would like remedied before the new tenancy started. Mr Morton advised the landlord that he was an experienced handyman and could help the landlords with any necessary maintenance and repair work required to bring the property up to standard. After further inspections, a list of work was prepared. This resulted in the landlord paying Mr Morton $850 to complete work that the previous tenant did not rectify before her tenancy ended. However, while a list of work was exchanged between the parties, it is not clear on the evidence what items the previous tenant remedied and what items Mark Morton agreed to do.
There developed a dispute about whether Mr Morton completed all the work he agreed to do, and the landlords sought reimbursement of the amount paid saying he did not complete all the work. However, I have not allowed the landlords to pursue this claim in the Tribunal because it arises from a separate contract for service between Mr Morton and the landlords. It is not a dispute in relation to the tenancy and in their capacity as landlord and tenant. Therefore, it is outside the jurisdiction of the Tribunal. See section 77 RTA.
Mr Morton claims that the landlords failed to maintain the premises in several respects during the tenancy and required the tenants to carry out repairs and maintenance during the tenancy (which were landlord responsibilities) for which they seek reimbursement. The tenants were required to file a statement detailing these claims in the first case conference orders made by Adjudicator Greene on 13 February 2024. This was not done with the tenants saying they did not understand what was required. I made further orders after a hearing on 26 March 2024 requiring the tenants to email the Tribunal and the landlords an itemised list of the repairs and maintenance work carried out by the tenants during the tenancy and the amounts claimed by the tenants for labour and materials by 4pm on 28 March 2024. My order stated that should the tenants fail to provide an itemised list of these claims by the due date, they would not be considered at the hearing and may be dismissed. The tenants failed to comply with this direction by 28 March 2024 and nor did they do so before the hearing on 26—27 June 2024. Mr Morton said he could provide the list at the hearing. I advised him that, having failed to comply with two previous Tribunal orders to itemise his claims, it was not fair on the landlord to allow him any extension. I spent considerable time at the hearing on 26 March 2024 discussing the claims and my directions with the parties and I do not accept that the tenants could have misunderstood what they were required to do. For those reasons, the tenant’s claims that they should be compensated for maintenance work they allege the landlords required them to do at the premises are dismissed.
Despite the tenancy being extended/renewed twice and lasting almost 3 years, the landlord/tenant relationship was not without complications. It is evident that the landlords were under financial pressure from their bank to sell the premises if rent was not paid on time to satisfy mortgage obligations and they made this known to the tenants. The tenants were at pains to secure the tenancy. To that end, Mr Morton was quick to offer his handyman services to the landlords and made promises of being able to procure maintenance materials at cost price hoping that this would be an incentive for the landlords to keep them as tenants rather than sell the property. This resulted in the parties reaching various “deals” outside of the usual tenant/landlord relationship. However, these were poorly documented. Both parties were trying to ensure that the tenancy would be financially beneficial to them. The tenants were hoping perhaps that Mr Morton’s handyman skills would be seen as valuable consideration in the nature of some of the rent to be paid. The landlords were keen to keep maintenance costs in check. This led to a tension between the parties and their competing interests. Once the landlords gave another indication that they wanted to sell the premises towards the end of 2023, the tenants issued a 14-day notice on 2 December 2023 for various issues. The landlord then served a notice on 8 December to terminate, and the tenants lodged a claim with the Tribunal. They then left the premises before the end of the term and stopped paying rent. The landlord later cross-applied. The wealth of claims raised by each party shows the extent of the conflict which developed. Tenant claims Has the landlord breached obligations regarding maintenance & HHS?
The tenants claim that the landlord has breached their obligations under section 45 RTA as follows: a. Under s45(1)(bb)—failure to comply with healthy homes standards regarding underfloor insulation, ventilation (extractor fans) and ground moisture barrier; b. Under s45(1)(b)—failure to provide a working heat pump remote and failing to address mould problems at the premises.
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 RTA. Underfloor insulation
From 1 July 2019, all residential premises must be insulated to a minimum standard in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI).
Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least
9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The landlord obtained a healthy homes assessment from Sustainability Trust on 17 November 2020 (the HHS report). The HHS report provided in evidence confirmed that the underfloor insulation present at the assessment date was no longer compliant and was considered a hazard. The report also said that the insulation was damaged with an estimated R-value in accessible areas of less than 0.9. Therefore, it needed to be removed and replaced.
The evidence proves that the underfloor insulation did not comply with the SAI requirements in force from 1 July 2019 and which applied at the start of this tenancy on 2 May 2021. The landlords were under an obligation to address the underfloor insulation after receiving the HHS report. Furthermore, the HHS report summarised the various HHS compliance dates and specifically noted that the compliance date for insulation was from 1 July 2019. In that regard, the landlords were not correct in assuming that they had until 1 July 2025 to complete the insulation work (as they advised the tenants—see paragraph 17 above).
Underfloor insulation was not installed until Mr Morton carried out the work in 2023. The exact completion date is not clear but there is email evidence that the landlords dropped off the third of four packs of insulation for Mr Morton to install on 24 June 2023, so it is likely that the work was completed not long after. Mr Morton sent photos of the finished work by text to the landlords, but the texts provided in evidence are not dated. In summary, the insulation requirements were outstanding from 2 May 2021 until approximately late June/July 2023.
Failure to replace the underfloor insulation as required is an unlawful act for which exemplary damages may be awarded. I deal with exemplary damages separately below. Extractor fans and ground moisture barrier
The HHS ventilation standard requires that each kitchen and bathroom have extractor fans installed and ducted to the outside with a minimum defined extraction capacity. The HHS moisture ingress standard requires a ground moisture barrier when there is an enclosed subfloor space.
There is no dispute that the HHS report obtained by the landlords in 2020 found that the premises did not comply with the standards regarding extractor fans and a ground moisture barrier, and they would need to be installed by the appropriate HHS compliance date.
Given my finding that this tenancy was renewed on 1 May 2023, the landlords were required to complete this work by 30 July 2023. The landlords did not ensure the outstanding work was completed by this date and are in breach of their obligations. Mr Morton installed a ground moisture barrier sometime after he issued a 14-day notice (which related to this work) on 2 December 2023 and the date the tenants vacated the tenancy in February 2024. Installation of compliant extractor fans was not done during the tenancy. Failure to install compliant extractor fans and a ground moisture barrier are unlawful acts for which exemplary damages are considered separately below. Heat pump remote
The tenants say that the heat pump remote supplied at the start of the tenancy did not work because it was not the correct remote. The landlords allege that the heat pump could still be operated from a switch on the unit. They also say that Mr Morton had agreed to replace the remote at his cost. Ms Ong made a handwritten note on the front of her copy of one of the first tenancy agreements listing “Things to do by Mark Morton to continue lease” which included: “Remote Panasonic heat pump (Mark says he can replace)” At the end of the list Ms Ong records: “Total paid to mark $850 @ end of [previous tenant’s] lease” However, this note is not initialled or signed by the parties and it is not mentioned in other email exchanges listing the work that was outstanding. Also, nowhere in the exchanges is there clarity about the matters completed by the previous tenant and the matters that Mr Morton was paid to remedy. Mr Morton says he advised the landlords he could obtain a remote but never agreed that he should pay for it. He says the tenants kept asking the landlords to supply it and it was one of the issues listed in the 14-day notice served on the landlords dated 2 December 2023.
I am not certain that the remote was necessary to operate the heat pump, but the landlords should have ensured a working remote was supplied. They did not do so which is a breach of their maintenance obligations. I consider any compensation and exemplary damages for the breach separately below. Mould
The tenants claim that the premises were susceptible to mould which grew on surfaces all the time and was evident at the landlord’s inspections.
Mould is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant has a statutory duty (under section 40(1)(d) RTA) to tell the landlord promptly where there is a defect with the premises such as a problem with mould, so that appropriate action can be taken by the landlord. A landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
The tenants claim that that the mould was present when the landlords conducted inspections and that the landlords told them to clean and paint over it. However, there was no documentary evidence of the tenants reporting any ongoing mould problem to the landlords. While the tenants produced photos showing mould at the premises, they gave evidence that these were taken at the end of the previous tenancy, and they agreed the landlord had paid Mr Morton to clean those areas.
The landlords deny that there was a mould problem evident at any inspections, but they often told the tenants that they needed to tidy up. They also allege that the tenants were reluctant to allow access for regular inspections, often making excuses.
Just prior to vacating, the tenants instructed a contractor from Mould Masters to conduct air quality and humidity testing at the premises on 8 February 2024. The contractor took samples from each room which were then analysed by IAQ Analytics. The air quality testing of each room produced a reading of 9.The IAQ report states: “Level 9 counts indicate elevated levels of contaminant particles which may include any of: dust....pollens, possible indoor amplification of moulds, etc though also may not be limited to these. Further investigation of potential contamination sources is required. The results reported may be affected by the degree of ventilation to outdoors, or by recent housekeeping, human activity or work activity....”
The humidity testing recorded humidity levels of between 61.30% -84.30% with seven rooms in the 70% plus range. The report says levels should be between 30-60% to decrease fungal growth and ideal levels are between 45-55%.
The report noted that lifestyle choices can also be contributing factors to dampness by failing to open windows and doors or not allowing exhaust fans enough time to run after showering and cooking.
The tenants could argue that lack of underfloor insulation, ground moisture barrier and extractor fans during the tenancy might have contributed to the air quality and humidity readings. However, there no evidence, that the tenants had raised humidity and mould as an issue with the landlords during the three years that they occupied the premises.
While the IAQ analytics report indicates some high humidity readings at the property which might contribute to mould growth, there is insufficient evidence of mould present during the tenancy and the cause of any mould (i.e. whether it was caused by tenant living habits or some defect with the property.)
In summary, there is insufficient evidence to establish that mould or dampness issues occurred at the tenancy due to some inherent defect with the premises or lack of maintenance by the landlords. There is also no evidence that the tenants reported any issue with mould and humidity to the landlords so that they had an opportunity to address the issue. For those reasons, the claim must be dismissed. Compensation and exemplary damages for s45 breaches
The tenant seeks compensation for the landlord’s failure to comply with the HHS regarding underfloor insulation, installing extractor fans and a ground moisture barrier. It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as he would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement. I am not satisfied on the evidence that the tenants have proved a degree of loss suffered because of the breaches. The landlords say that the tenants advised them that the premises were warm, and they were able to adequately ventilate. I have also found that allegations of problems with mould and dampness during the tenancy were not proved and the tenants did not complain about these issues to the landlord. Therefore, I find no basis for compensation and consider exemplary damages for these breaches only.
In relation to the failure to supply a heat pump remote, I consider compensation is justified at the lower end of the scale. There is no evidence to prove the heat pump could not operate without the remote, but it would have been inconvenient. Exchanges between the parties show that they both held an expectation that the remote should be replaced. Compensation of $250 is awarded for the loss of amenity.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 3 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 3 Auckland City Council v Blundell [1986] NZLR 732 proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
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 District Court has said the requirement of intention is not about whether the party was aware they were breaching the RTA. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do. 4
It is not generally open to the landlord to plead confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl 5 , where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
In relation to the landlords’ underfloor insulation obligations, I am satisfied that the matter of intention is proved, and the landlords knew (or ought to have known) after commissioning the HHS report that underfloor insulation required replacement to comply with the SAI. It remained outstanding for over 2 years between 2 May 2021 and approximately June/July 2023 when Mr Morton completed the insulation work. The landlords misled the tenants when they indicated that they were not required to insulate within 90 or 120 days of the tenancy starting. The requirements for insulation had been in force since 1 July 2019.
In relation to their obligations to install compliant extractor fans and a ground moisture barrier under HHS, initially the landlords were not required to comply until 1 July 2025 because the tenancy was entered before 1 July 2021 and was then extended to 30 April 2023. Because I have found that the last tenancy 4 Parton v Fifita TT 1815/00, DC Auckland,1/5/2001 5 TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 agreement was not an extension but a renewal which took effect from 1 May 2023, the earlier compliance date was triggered, and the landlord was required to comply with HHS by 30 July 2023. While I would not necessarily expect the landlords to understand the legal difference between a renewal and an extension, the fact that they referred in their email correspondence to a renewal should have put them on notice to check the HHS provisions, given that they specifically apply when a tenancy is “renewed” after 1 July 2021 (see the email dated 27 February 2023 in paragraph 26 above). In summary, I find that the landlords cannot claim ignorance when it comes to their HHS obligations. Therefore, the necessary intention is present in relation to the breach of their obligations to install compliant extractor fans and a ground moisture barrier.
There is also evidence in the landlords’ email of 27 February 2023 (see para 26 above) that once Mr Morton agreed to do the HHS work (by providing free labour) he suggested that the jobs did not have to be done all at once. Therefore, arguably he was in control of the timeline. The landlords also complain that he never did the extractor fan work. However, they also conceded at the hearing that they did not supply him with the required materials as they could not agree on the method.
Although Mr Morton agreed to do the HHS work, the landlords retained the ultimate responsibility for ensuring the HHS work was done in the required timeframe.
There is significant public interest in ensuring that landlords comply with their obligations. The SAI and the HHS are both major pieces of legislation designed to address a well-documented lack of healthy, warm, dry rental houses. The legislation was well publicised over a long period with the initial provisions regarding insulation coming into force from 1 July 2019. Having regard to those factors, I consider the following awards of exemplary damages are justified for each breach: a. Underfloor insulation breach: $4,800 to reflect the seriousness of failing to replace what was described as non-compliant, hazardous, and damaged insulation over a more than 2-year period; b. Extractor fans: $1,400 to recognise that the work was not done by 30 July nor before the tenants vacated in February 2024; c. Ground moisture barrier: $1,000 to recognise that the work was not done by 30 July but completed before the tenants vacated in February 2024.
The awards total $7,200. I consider the higher award is justified for the breach of underfloor insulation obligations in the circumstances. The awards for failing to install compliant extractor fans and a ground moisture barrier may appear light in comparison but I am cognisant of the District Court decision in Gardiner v Upland Bay Investments Limited. 6 The court held that where there are multiple breaches under the same section of the RTA creating an unlawful act, then only one award can be made to cover all the breaches up to the available maximum. Section s45(1A) provides that “failure by the landlord to comply with any of paragraphs (a) to (ca) of subsection (1) is declared to be an unlawful act.” Section 109(4) and Schedule 1A RTA then provide that the maximum amount that a person may be ordered to pay for an unlawful act under s45(1A) is $7,200. Gardiner held: “[29] However, Schedule 1A is explicit, when setting the maximum amount awardable in relation to both s 19 and 45 breaches, that the maximum applied to the breach of duties (plural), in the case of s 19 and the landlord’s failure to meet obligations (also plural) in respect of s 45. The plural form as adopted by the legislature in both instances indicate that the maximums are in respect to a global or total award for all breaches under the respective sections.”
There is some debate about this interpretation. However, in this case, I consider that the total of the awards made are appropriate and justified to mark disapproval of the landlords’ conduct.

Did the landlord provide the required HHS compliance statement?

The tenant claims the landlord has not provided the required information and/or has made false or misleading statements about compliance with HHS in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information regarding insulation: a. whether or not insulation is installed in any ceilings, walls, and floors, and b. details of the location, type and condition of all insulation installed and when it was last inspected.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so.
In addition, a landlord must include a signed statement in the tenancy agreement that provides 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) and include the information (if any) prescribed by the HHS regulations, in relation to the heating, ventilation, draught- stopping, drainage and moisture ingress standards. 6 CIV-2014-085-37, DC Wellington, 27 August 2014
The landlord commits an unlawful act if the Landlord fails to provide the required information and in those circumstances the Tribunal may award exemplary damages up to a maximum of $750. See section 13(1F)(a) and Schedule 1A RTA.
The landlord also commits an unlawful act if the landlord’s statement includes anything that the landlord knows to be false or misleading. In those circumstances, the Tribunal may award exemplary damages up to a maximum of $900.00. See section 13(1F)(b) and Schedule 1A RTA.
In the first tenancy agreement, the landlord filled out the insulation statement and claimed that it was based on the information in the HHS report completed by Sustainability Trust in November 2020. However, the information is not accurate and does not reflect what was disclosed in the HHS report about the underfloor insulation. The landlord ticked boxes which stated that underfloor insulation was completed in all rooms as installed by EECA and it met the minimum requirements for underfloor insulation. However, the landlord did not complete the sections as required to disclose the type of insulation, its R-value or minimum thickness, its age, and condition.
This information is contrary to the HHS report which determined that the underfloor insulation was no longer a compliant form, was considered a hazard and was damaged. Removal and replacement was required. It follows that I find the underfloor insulation statement in the tenancy agreement was false and misleading.
The landlord might argue that they told the tenants that the insulation required attention at the start of the tenancy. However, their evidence was that they told the tenants the insulation needed upgrading but not within the 90/120-day compliance time limit. This was wrong. The term “upgrade” was misleading given that the HHS report highlighted that it must be replaced because it was non-compliant, hazardous and damaged. Compliance was also required at the start of the tenancy.
The question when determining whether the landlord has committed an unlawful act under s13(1F)(b) RTA is whether the landlord knew the statement was false or misleading. I consider that the required knowledge is established. It is well- accepted that the legal definition of “knowledge” means knowing that something is so or being “virtually certain” about something. However, it also satisfied by proof of “wilful blindness,” i.e. deliberately shutting one’s eyes to the obvious or refraining to make reasonable inquiries.
After carefully considering the circumstances, I am satisfied that the landlords knew or ought to have known that a statement to the effect that there was compliant underfloor insulation was false or, at best, misleading and they failed to state the facts as documented in the HHS report they obtained. They have therefore committed an unlawful act.
As to whether the landlord failed to provide other HHS information, the landlord did not sign nor date the statement in the standard form tenancy agreement confirming that they would comply with HHS either in the first tenancy agreement or the renewal. This is also an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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.
I am not persuaded that the landlords can plead confusion, lack of knowledge about how to complete the tenancy agreement, or ignorance of the law given the District Court decision in TMT New Zealand Ltd 7 . Therefore, I find that the landlord acted intentionally in failing to provide the required compliance statement and in providing a false or misleading statement about underfloor insulation. For the same reasons set out in paragraphs 67-71 above I consider the following exemplary damages awards are justified: a. False and misleading underfloor insulation statement: $600 to recognise the seriousness of indicating that the insulation was compliant; b. Failing to confirm compliance with other HHS: $250 at the lower end of the scale.

Did the landlord require the tenants to waive their rights under the RTA?

No person may enter any transaction, contract, or arrangement, or do anything: a. that contravenes, or will contravene, any provision of the RTA; or b. for the purpose, or having the effect of, evading, defeating, or preventing the operation of any provision of that Act. See section 137(1) 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 137(2) and Schedule 1A RTA.
The tenants claim the landlord breached s137 by requiring Ms Kersicla to sign a handwritten statement prepared by Ms Ong and dated 22 May 2021 which read: “I, Sarah Kersicla agree to not have the underfloor insulation done (as the house is warm enough) and also no need for the kitchen ducting (range hood is sufficient) and bathroom ducting (as window opens to release condensation is fine) for the duration of my tenancy at ....”
Ms Ong confirmed that she required the tenant to sign the above statement. The statement was a breach of s137 because in it the tenant confirms that she 7 See n5 above. will not require the landlord to replace the underfloor insulation which was then required. I note that the landlord was not required to install compliant extractor fans when the tenancy first started but the work was required within 120 days of the renewal tenancy agreement. By requiring the tenant to sign this statement the landlords have committed an unlawful act. Section 11 RTA also makes clear that a tenant cannot waive their rights under the RTA.
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. For the same reasons set out in paragraphs 67-71 above, the matter of intention is proved, and an award of $600 exemplary damages is justified. I have made an award at the lower end of the scale on the basis that there is no evidence of a previous breach by the landlord of this nature.

Did the landlord purport to give an unlawful termination notice?

The tenant claims that the landlord has breached their obligations under section 60AA RTA by threatening to terminate the tenancy if rent was not paid or work on the premises was not carried out by the tenants.
Under Section 60AA RTA, a landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant knowing that they are not entitled, under the RTA, to give the notice.
The landlord and the tenants signed two tenancy agreements at the start covering the same initial period. One was for 12 months commencing on 2 May 2021 and the other was for two months being a “trial period” commencing on 2 May 2021 (the short-term agreement). The landlord advised (and documented on the short-term agreement) that provided rent was paid ‘on time’ during the trial period then the original 12-month tenancy would stand. Hover section 7(2A) RTA provides that the parties may not enter a tenancy for a fixed term of not more than 90 days for the purpose of using that tenancy as a trial-period for ascertaining the desirability of extending or renewing the tenancy. Therefore, the short-term agreement breaches the RTA and is invalid.
I do not find that the short-term agreement amounts to a breach of s60AA because the landlords did not in fact give nor purport to give a notice to terminate the tenancy at the end of the short-term/trial period. There were. many emails sent to the tenants chasing rent payments prior to the tenancy commencing on 1 May 2021. In some of those emails the landlord advised that they may have to end the tenancy and sell the house if rent was not paid because of financial pressure from their bank. However, there was no evidence provided of any notice to terminate or purporting to terminate the tenancy after it started on 2 May and before the term was to end on 3 July 2021 for not paying rent on time. Of course, a landlord can bring an application to the Tribunal to terminate a fixed term tenancy where rent is not paid on time and is in arrears, but that step was never taken in this case. In summary, there was no proven breach of s60AA, and the claim is dismissed.
The tenants further claim that before the end of each fixed term, the landlords threatened to terminate the tenancy unless the tenants agreed to complete maintenance work at the premises. I am not satisfied that there is any evidence in support of this claim until the final term was negotiated. As already detailed above, the landlord told the tenants that if they wished to secure another term, they would need to carry out the HHS work (see para 26 above). They also claimed that the consideration for this was a reduced weekly rent increase to $700 rather than $750. The tenants agreed and I accept that Mr Morton had touted his handyman skills and ability to complete maintenance work around the home. Therefore, it seems that the parties struck a fair bargain to secure another fixed term and a reduced rent increase in consideration for Mr Morton’s labour. The landlords had also clearly referenced their desire to sell the premises unless the terms of a renewal could be agreed.
Had the parties not agreed on the above terms, the landlords would not have been able to simply terminate the tenancy on expiry of the term. Under the Residential Tenancies Amendment Act 2020, for fixed term tenancies commencing after 11 February 2021, section 60A specifically removed the previous right of landlords to unilaterally end a tenancy upon the expiry of the term. The section says: 60A Fixed-term tenancy becomes periodic unless contrary notice given (1) On the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy. (2) However, the tenancy does not continue as a periodic tenancy if,— (a) before the expiry, the parties renew or extend the existing tenancy agreement; or (b) before the expiry, the parties agree not to continue with the tenancy; or (c) at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminates the tenancy on or before the expiry or that would do if the tenancy were already periodic.
However, there is no evidence that the landlords purported to give or gave unilateral notice to terminate the tenancy on expiry of the second-year term. The discussions and communications leading up to the final fixed term were part of the negotiations. We cannot know exactly what the parties might have done had they not agreed on the terms for another fixed term. If there was no mutual agreement to renew, extend or end the tenancy then it would have become periodic. In that situation, it appears on the evidence that the landlords would have given a notice to terminate because of an intention to sell. They would have been entitled to give a 90-day notice under s51(2)(a) on grounds that the premises were to be put on the market for sale.
In summary, there is no evidence that the landlords intended to unilaterally end the tenancy on the expiry of the term (which would be unlawful) rather than give a lawful notice to terminate under s 51(2)(a). Accordingly, there is no proven breach of s60AA, and the claim is dismissed.

Did the landlord enter the premises unlawfully?

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, repairs and maintenance. The definition of “premises” in this section does not include land or facilities. See section 48(1) and (2) RTA.
The tenants alleged that on one occasion Mr Yeoh tuned up at the premises unannounced to deliver a roll of insulation. They say they heard him try to enter the premises with a key. Mr Yeoh denied trying to enter the premises. He says that he arrived with the roll of insulation; knocked on the door to see if they were home and when there was no answer he dropped it under the carport.
I am satisfied on the evidence that there was no unlawful entry because the landlord did not enter the house. Visiting the property and knocking on the door is not a breach of the restrictions under s48. The claim is dismissed.

Did the landlord harass the tenants?

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". See MacDonald v Dodds. 8
The tenants allege that the landlords were constantly harassing the tenants to fix things all the time. However, they were unable to provide any supporting evidence such as texts or email messages. In the absence of any evidence, the claim must be dismissed. 8 CIV-2009-019-001524, DC Hamilton, 26 February 2010 Landlord claims

How much is owed for rent?

The fixed term of the tenancy was not due to end until 22 April 2024, which was the end date typewritten on the tenants’ signed version of the last renewal agreement.
On 8 December 2023, the landlords gave the tenants more than 90 days’ notice to terminate the tenancy at the end of the fixed term on the grounds that the premises were to be put on the market for sale within 90 days of the termination date. Termination in this manner was permitted by s51(2)(a) and 60A RTA. The landlords incorrectly recorded that the last day would be 20 April 2024.
In any event, the tenants stopped paying rent after 10 February and moved out on or about 20 February. The landlord did not agree to end the tenancy early and did not relet the premises before the fixed term expired. The landlord provided rent records which prove the amount owing at the end of the tenancy. I have taken the date specified in the termination notice (20 April 2024) as the last day of the tenancy. At that stage rent arrears was $7,000.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA. The tenant must also replace standard light bulbs.
The tenant did not leave the premises reasonably clean and tidy, as shown in photos produced in evidence by the landlords taken on 25 February shortly after the tenants had vacated the premises. The areas requiring cleaning as shown in photos were the oven, rangehood, kitchen cupboards and drawers; bathroom sink, bath, cupboards, and floors; laundry floor and cupboards, windows, and light fittings. The landlords obtained a quote for the cleaning work after carrying out an inspection with the cleaning contractor. The quote ranged from $718.75- $971.75. However, the landlords did the cleaning work themselves, saying it took them approximately 40 hours over one week to clean. I consider cleaning costs of $800 are justified for the cleaning shown in the photos.
The landlord also sought costs of a skip bin for removing rubbish outside the house. However, the landlords did not provide photos of the rubbish and nor have they done the work, although the premises have now been re-tenanted. In the absence of evidence to prove the claim, it must be dismissed.
The following chattels were missing at the end of the tenancy: The landlord had to replace light bulbs and missing / damaged light fittings. I deal with these claims in the damages section below.
The landlord also claims the costs of replacing the missing heat pump remote which it says was there at the start of the tenancy and is shown in some pre- tenancy photos. However, I have already made a ruling that the landlords were responsible for the costs of replacing the remote (see paragraphs 49-50 above).
The landlords seek the costs of replacing the recycling bin. However, there is no evidence that the bin was present at the start of the tenancy . The claim is dismissed.

Is the tenant responsible for the damage to the premises?

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 by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA. In this case the landlords have insurance cover with an excess of $650
Where 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. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) 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 Guo v Korck. 9
Where damage is proved, and items must be replaced I must consider betterment and depreciation. The landlord should be returned to the position 9 [2019] NZHC 1541 they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I must take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan
I consider each of the landlords’ claims for damage and whether it was caused during the tenancy; is more than fair wear and tear; and whether the tenant has disproved liability for the damage.
Nine broken/cracked windows: I am satisfied on the evidence that the windows were damaged by the tenants during the tenancy. Mr Morton obtained a written opinion from a glazier suggesting that some of the cracks in the windows were caused by movement in earthquakes and “building flex”. After providing a copy of this report to the landlord, Ms Ong called the contractor who suggested to her that he was intimidated by Mr Morton and wrote what Mr Morton wanted him to write. In any event, the contractor was not called to give evidence and could not be questioned about his opinion. Therefore, this evidence carries little weight. The windows were covered by insurance, but the landlord was required to pay an excess and costs of $1,184.75, for which the tenants are liable.
There is evidence that the parties agreed to split the costs of reglazing some of the windows with the tenants to make payment in $30 instalments for the costs. However, once again the terms of the arrangement are not clear. In a text message from the landlord to the tenant dated 17 January 2024, the landlord acknowledged receiving payments between 23 May and 14 November 2023 totalling $140 from the tenants for glazing. I have credited this sum towards the repair costs.
Damaged/missing light shades: The landlord provided photo evidence showing light shades present at the start of the tenancy in the lounge, master bedroom and front hallway which were missing at the end of the tenancy. The tenants agreed that one or two light shades were broken but otherwise could not explain the other missing light shades. However, I am satisfied that they are responsible for the replacement costs. Some of the lights are antique and cannot be replaced. Therefore, the landlord needed to replace the whole fitting. The landlord obtained a quote for replacing them with more reasonably priced light fittings and replacing several missing lightbulbs for a total of $908.40. However, I must consider depreciation. While the lights may’ve been antique, it would not be reasonable to expect a tenant to be liable for the costs of replacing expensive antique light fittings. Current depreciation guidelines estimate the life of light fittings in a rental property to be 10 years. In that regard, the light fittings should be fully depreciated. However, but for the damage the light fittings would probably have lasted for a few more years. Therefore, I award the landlord $115 being approximately 15% of the replacement costs (including electrician labour) to compensate for the unintended early replacement. I also award the full cost of $142.35 to replace the lightbulbs. The total award is $257.35.
Damages set out in Thaiviet Group Ltd quotations dated 28 March 2024 and 9 April 2024: The landlord arranged for a contractor to provide an itemised quote for various repairs including plastering and painting throughout the house for which they seek reimbursement from the tenants. In some cases, the repairs have been approved by their insurers so that the claims are limited to the insurance excess. Many of the claims must be dismissed because the landlord was not able to provide evidence to establish the condition of areas of the premises before the tenancy began. For some claims, the landlords provided photos taken well before this tenancy began when the previous tenant was living there with Ms Kersicla and Mr Morton later joining as flatmates. However, that is not sufficient to prove the condition of the premises when Ms Kersicla and Mr Morton became tenants. It is unfortunate that the landlord did not document the condition of all areas of the premises at the start of the tenancy and after any cleaning and remedial work arising from the previous tenancy was completed. Therefore, in many instances the landlords cannot prove that the damage occurred during this tenancy other than by fair wear and tear. The following claims are dismissed for that reason or withdrawn by the landlord as indicated at the hearing: Quote dated 28 March 2024 Items numbered 1-3 and 5-11 repairs in the master bedroom, the entrance and in the stairwell; Item 4-rehangingwindow panels in the master bedroom is withdrawn by the landlord; Items 15-18 repairs in the stairwell and the big bedroom on level 2; Items 20,21,and 23 repairs in small toilet and bathroom Item 24: Replacing kitchen floor vinyl: While the landlord provided a photo of the damaged floor after the tenants vacated, the photo provided before the tenancy started is not clear and is also not dated. The tenants claim the floor was already damaged before the tenancy started. There is insufficient evidence to prove the damage occurred during the tenancy and I must dismiss the claim. Quote dated 9 April 2024 Items 2- 7 repairs in bedroom downstairs, small bedroom upstairs and kitchen (except the cost of removing TV bracket and making good in the small upstairs bedroom); Items 9-13 repairs in the lounge, laundry, bathroom, and entrance; Items 14 and 15- installing ceiling gib and plastering of big bedroom on level 2 and exterior painting are withdrawn by the landlord. Remaining claims in Thaiviet quotations
Repairs to handrail in stairwell: The landlord provided photos when the tenancy started and once the tenants vacated of the handrail in the stair well. The rail was somehow twisted during the tenancy and required repair. The costs to repair the rail was $1,398.11. However, this was covered by insurance. Therefore, the landlords seek the excess of $650. The tenants could not offer an explanation for the damage except to say they were not aware of it. I am satisfied that the damage was likely careless, and the tenants have not disproved liability for the damage. I award the insurance excess.
Re-sanding and varnishing wooden stairs: The tenants confirmed that they stuck carpet patches onto the wooden stairs which they removed when they vacated. I accept the landlords’ evidence that this damaged the stairs and they needed to re-sand and varnish them. When asked when the stairs were last sanded and varnished, the landlords could not be certain. I find that the stairs would likely be showing signs of fair wear and tear anyway and it would not be fair to attribute the full repair costs onto the tenants. I consider that the costs sought of $1,080 plus GST must be fully depreciated. However, but for the damage caused, the stairs would likely not need sanding and varnishing for a few more years. Therefore, I award $250 being approximately 20% for the unintended early remedial work.
Replacing the door in small toilet: The landlord provided a photo to show that the door into the small toilet was a sliding door when the tenancy started. They claim that Mr Morton told them that he broke the door and replaced it with a hinged door without the landlords’ permission. The landlords say the hinged door did not close properly and they seek the costs of $660 plus GST to reinstate a sliding door. Mr Morton claims that the sliding door was broken at the start of the tenancy, and he fixed it then by replacing it with a hinged door. However, the door is not listed as an issue to be fixed at the start of the tenancy and nor is there evidence that he advised the landlords of the problem and obtained permission to change it. Therefore, I accept that he changed the door without permission and is liable for the reinstatement costs.
The door was old, likely dating from the 1990s. Current depreciation guidelines estimate the life of a hollow core door to be 20-30 years. Therefore, the costs to replace the door should be fully depreciated. However, but for the tenants’ actions, the original door could probably have been fixed to last a few more years. Therefore, I award the landlords $130 compensation being approximately 15% of the replacement costs for the unintended early replacement cost.
Repair and repaint hallway door into bathroom: Mr Morton confirmed that he fixed a rack on the bathroom side of the door during the tenancy. The landlords claim the costs to remove the rack, then plaster and paint over the damage. They also seek the costs of painting both sides of the door. However, there is insufficient evidence to prove both sides need repainting due to tenant damage, as there is no photo of the hallway side of the door at the start of the tenancy. I allow $100 to repair, plaster and paint the bathroom side of the door which I consider reasonable, bearing in mind the landlords’ advice that the door was last painted in 2018.
Front door painting: The front door was painted a different colour on both sides by the tenants. The landlords claim the costs of reinstating it to the original colour. The tenants claim they had the landlords’ verbal permission to paint it. However, even if the tenants are liable to repaint the door, the landlords advised that it was likely last painted 10 years ago. In those circumstances, the costs of repainting the door should be fully depreciated. The claim is therefore dismissed.
TV bracket on wall in small bedroom upstairs: Mr Morton acknowledged that he fixed a TV bracket to the wall. Therefore, I allow the landlord $100 compensation to cover the costs of removing the bracket and plastering and painting over the damage caused.
Repainting dining room walls: The landlord says the tenants painted the dining room walls a pale/grey colour without obtaining their permission. They noticed the change at an inspection and advised the tenants that the walls would have to be reinstated to the original cream colour at the end of the tenancy. Mr Morton painted the walls a cream colour before the tenancy ended but the landlord says that it is not to a workmanlike standard and needs to be re-done at a quoted cost of $1380 plus GST.
The photo of the dining area taken after the tenants vacated show that the area is painted cream. The photo is taken at a distance and any areas that the landlord claims are not to a reasonable standard are not visible. In the absence of sufficient evidence to show that the walls have not been repainted to a reasonable standard, the claim must be dismissed.
Damage to kitchen cabinetry: The landlord produced a quote from contractors to replace damaged kitchen cabinetry. However, this was not an issue that was set out in the list of claims to be pursued by the parties in my order of 26 March 2024. I would comment that there is only evidence of damage to one kitchen drawer at the start of the tenancy. A list of issues showing outstanding matters at the end of the previous tenant’s tenancy included reference to replacement of a damaged kitchen drawer. However, it is not clear whether the previous tenant was to attend to this or whether Mr Morton was to do it. Again, in the absence of a clear agreement and photos showing the condition of the cabinetry at the start of this tenancy and after cleaning and remedial work was done, the landlord cannot prove the damage was caused by the tenants.
Back door: A claim concerning the back door was not set out in the list of claims to be pursued by the parties in my order dated 26 March 2024. The landlords claim that the backdoor was replaced by Mr Morton without their permission, and they seek the costs to replace it. However, I note that there is an email from the landlords to the tenants dated 27 August 2022 agreeing that the tenants may replace the back door with a solid door. There was no evidence to support a claim that the replacement door was not to a reasonable workman- like standard.

Are the landlords entitled to recovery of the rent reduction given?

As already outlined above, the landlords offered the tenants a rent reduction of $50/week in the final year of the tenancy, increasing the weekly rent to $700 instead of $750, in consideration for Mr Morton carrying out underfloor insulation, installing complaint extractor fans in the bathroom and kitchen and a ground moisture barrier. The value of the reduction over $52 weeks was $2,600.
The landlords argue that because Mr Morton did not complete all the agreed work, the tenants should reimburse the landlords accordingly.
I am satisfied on the evidence that the bulk of the work was completed and only the extractor fans remained outstanding. However, the landlords must weather the blame for this because they did not supply the required materials for the extractor fan work (the ducting and cowls needed to vent the extractors outside). Evidently, the parties could not agree on how the work should be done. The landlords never set a strict timetable for the work nor was there a clear and concise agreement in writing to document what was to be done and when. In the circumstances, I consider that the landlords are responsible for the failure to complete the extractor fan work. In any event, it would not be fair and equitable to order any reimbursement. The claim is dismissed. Did the number of occupants living at the premises exceed the permitted maximum?
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.
The landlords claim that the number of people living at the premises exceeded the maximum number allowed in the tenancy agreement of four. They say that neighbours and a contractor told them that they saw another person staying overnight. Also, at the end of the tenancy, mail was arriving in the name of another person.
The tenants deny having another person living at the premises and say that a friend was using their address for post.
There is insufficient evidence to prove the claim on the balance of probabilities and I dismiss the claim.

Did the tenants refuse the landlords access to the premises?

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, 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 Residential Tenancies Act 1986.
The landlords claim the tenants have not allowed them entry to the premises when they were entitled to enter. They allege that there were many times when the tenants were not at the premises for scheduled visits.
First, a tenant does not have to be present for a scheduled visit where the landlord has given the required notice. However, the landlord did not offer any evidence in support of the claim. For example, they did not evidence of proposed inspections and evidence of the tenants refusing to allow access without reasonable excuse. There is insufficient evidence to prove the claims which I dismiss.

Is the landlord entitled to exemplary damages for abandonment?

The landlord claims the tenant abandoned the premises. A tenancy is abandoned where the tenant leaves the premises without reasonable excuse and fails to notify the landlord, not intending to return or to meet their obligations.
A tenant commits an unlawful act if they abandon the premises, without reasonable excuse, when the rent is in arrears. Exemplary damages may be awarded up to a maximum of $1,500.00. See section 61(5) and Schedule 1A RTA.
The tenant advised the landlord of their intention to leave the premises in February 2024, mainly due to the conflicts that had arisen between the parties. Also, by this time, the landlord had given the tenants notice to end the tenancy on 20 April 2024 as they wished to list the premises for sale.
I find that the tenants did not strictly abandon the premises because they advised the landlord what they intended to do. The landlord was able to access the premises immediately when the tenants vacated to start the process of assessing the premises for cleaning and repairs.
While the tenants were not entitled to simply walk out and stop paying rent, I have awarded rent to the end of the term and, on balance, I consider that is a just and equitable outcome.
In summary, I am not satisfied that there is an abandonment, but if I am wrong, I consider an award of exemplary damages is not justified. Summary
The outcome of the above matters and the compensation and exemplary damages claims awarded to each party is that the bond is to be split between the parties as shown in the above orders. Overall, neither party has substantially succeeded with their claims. I regret the time it has taken to issue this decision. However, the length of it demonstrates that both parties raised an enormous number of issues over the course of two full hearing days. It took considerable time for me to review the evidence and submissions of the parties, analyse the applicable law, and arrive at a decision. What is obvious is that both parties were “in the wrong” to an extent and that is reflected in the overall result. It follows that I find neither party is entitled to suppression of their names and identifying details nor to reimbursement of the filing fee, because neither party substantially succeeded with their claims.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who are the tenants?

Was the tenancy renewed or extended?

Did the landlord provide the required HHS compliance statement?

Did the landlord require the tenants to waive their rights under the RTA?

Did the landlord purport to give an unlawful termination notice?

Did the landlord enter the premises unlawfully?

Did the landlord harass the tenants?

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Are the landlords entitled to recovery of the rent reduction given?

Did the tenants refuse the landlords access to the premises?

Is the landlord entitled to exemplary damages for abandonment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Who are the tenants?

Was the tenancy renewed or extended?

Did the landlord provide the required HHS compliance statement?

Did the landlord require the tenants to waive their rights under the RTA?

Did the landlord purport to give an unlawful termination notice?

Did the landlord enter the premises unlawfully?

Did the landlord harass the tenants?

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Are the landlords entitled to recovery of the rent reduction given?

Did the tenants refuse the landlords access to the premises?

Is the landlord entitled to exemplary damages for abandonment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions