What was the outcome of Tenancy Tribunal case 4781477?

The tribunal order states: Rebekah Jenkins and Mark Jenkins must pay Nicola Anderson and Brock

How much money was awarded in case 4781477?

Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4781477?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4781477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10112805-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4781477?

The tribunal order states: Rebekah Jenkins and Mark Jenkins must pay Nicola Anderson and Brock

How much money was awarded in case 4781477?

Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4781477?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4781477?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10112805-Tenancy_Tribunal_Order.pdf.

1411 Coast Road, Karitane, Waikouaiti 9471 Tenancy Tribunal Case 4781477 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4781477 — net $5,395.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Partial bond refund as agreed	$375.00	Partial bond refund as agreed
Exemplary damages	$5,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,395.44
Total payable by Landlord to Tenant	$5,395.44

Claims and awards in Tenancy Tribunal application 4781477 — net $5,395.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Partial bond refund as agreed	$375.00	Partial bond refund as agreed
Exemplary damages	$5,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,395.44
Total payable by Landlord to Tenant	$5,395.44

Order

Rebekah Jenkins and Mark Jenkins must pay Nicola Anderson and Brock Anderson $5,395.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenant sought a refund of their bond of $1,155.00, and exemplary damages for non-lodgement of the bond, failure to maintain the premises, and failure to comply with Healthy Homes Standards.
The tenant and landlord were parties to a verbal periodic tenancy from 7/7/2021 to 14/12/2023, initially at a rental of $385 per week and latterly at $405.00 per week.

Does the Tribunal have jurisdiction?

The starting point in determining the question of whether a tenancy comes within the Act is section 4. This section provides that the Act applies to all tenancies of residential premises unless specifically excluded.
Residential premises are defined in section 2 as “any premises used or intended for occupation by any person as a place of residence”.
Section 5 sets out tenancies which are excluded.
Under section 5(1)(m) the Act does not apply to premises “where the premises are let for the tenant’s holiday purposes”.
Section 10 provides that in any proceedings before the Tribunal where any party contends the Act does not apply it shall be for that party to establish the facts on which this contention is based.
The landlord submitted that the premises were their holiday home and they had rented the property to the tenant for six months to help them out while their house was being built.
In response, the tenant submitted that they had initially rented the premises for six months but due to personal circumstances had stayed at the property for two and a half years.
I find the Tribunal does have jurisdiction and the tenancy is not excluded.
The landlord agreed the premises were not let for the tenants’ holiday purposes.
The tenant resided in the premises for just under two and a half years, during which time the rent was increased.
Moreover, the landlord confirmed they had previously let the premises on three separate occasions since purchasing the property in 2016, for periods of around six months each for purposes other than holidays. Agreement on the bond
The tenant paid a bond of $1,155.00.
At the end of the tenancy the landlord deducted $625.00 for cleaning and refunded $530.00 to the tenant.
I allowed the parties the opportunity to settle the matter and they agreed that the landlord would refund a further $375.00 to the tenant.
An award for this amount has been included in this order.
However, the parties did not reach a settlement of the other matters claimed by the tenant.

Was there a written tenancy agreement?

Nicola Anderson and Brock Anderson claims the landlord did not ensure the tenancy agreement was in writing.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
In addition, a landlord must include a signed statement in the tenancy agreement that provides the following information: 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.
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. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Further the landlord must include in the tenancy agreement a statement about compliance with healthy homes standards and an insurance statement. See sections 13A(1A)(1CA)&(2) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
There is no dispute that there was no written tenancy agreement or that the other information set out in section 13A was provided.
I find the landlord has committed an unlawful act.

Did the landlord fail to lodge the bond?

Nicola Anderson and Brock Anderson claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not dispute that they did not lodge the bond.
Rather the landlord confirmed that when rent was paid late by the tenant, they used the bond to pay their mortgage.
I find the landlord has committed an unlawful act.

Did the landlord fail to comply with Healthy Homes Standards and state of repair?

The tenants claim that the landlord has breached the landlord’s 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) in relation to the ventilation standard.
In addition, the tenants claimed the premises were not maintained in a reasonable state of repair.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The Healthy Homes standards compliance dates were extended on 26/11/2022 so that all private rentals must comply by 1 July 2025.
However, because this tenancy began on 7/7/2021 the obligation then was that the tenancy must comply within 90 days of the commencement of the tenancy, which would have been 5 October 2021.
The tenant submitted that when they moved in the premises were in “disarray”, after painting work, electrical and power points were not attached to walls, there was mould on the bathroom ceiling, shower and toilet, the kitchen fan had not been connected and the outside cladding was incomplete.
In support of the claim a witness for the tenant provided a written statement and gave evidence.
On the other hand, the landlord disputed that the bathroom was mouldy and suggested a new bathroom had been installed sometime between when they purchased the property in 2016 and the tenancy beginning in July 2021.
Further the landlord confirmed an extractor fan was installed in the kitchen within two months of the tenancy commencing.
Despite having no independent report, the landlord believed the premises complied with healthy homes standards because the batts in the ceiling were R3.6, there was limited access underneath the premises for insulation, fans were installed in the kitchen and bathroom, all rooms had opening windows and some were double glazed, there was a wood burner and heat pump in the lounge.
However, the landlord agreed the cladding was defective and probably let in draughts and mice.
I find the evidence supports that the landlord failed to provide and maintain the premises in a reasonable state of repair and breached the healthy homes standards, in particular due to the lack of external cladding resulting in draughts.
The landlord has committed an unlawful act.

Should exemplary damages be awarded?

As I have found the landlord committed unlawful acts by failing to provide a written tenancy agreement, failing to lodge the bond, maintain the premises or comply with healthy homes standards, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to comply with their obligations under the legislation and turned a “blind eye” to the fact that the way in which they rented out their “holiday home” brought the premises within the Act.
The landlord confirmed that they owned another rental property and were aware of the provisions of the Act, albeit they seemed confused about when healthy homes standards first came into force.
I have carefully considered all the evidence provided and submissions made by the parties.
The effect on the tenant has been significant, in their words they “had experienced bullying and an unfair power imbalance” which was why they did not speak up earlier.
The fact that the tenants’ requests for issues to be fixed were met with the comment that “it wasn’t a proper rental” is simply unacceptable.
The legislation provides for bond money to be used for dispute resolution procedures under the Act. Non-lodgement of bonds is a loss and against the public interest.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
Moreover, a landlord, as happened in this instance, cannot use bond money to pay their mortgage.
The public and tenants in particular should be able to rely on landlords to comply with the legislation and when they do not the public should expect some censure.
Having considered the factors set out in section 109(3), particularly the effect on the tenants and the public interest I consider it just to award exemplary damages at the higher end of the scale. I have set these at $5,000.00.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
For the avoidance of doubt, I consider the landlord also committed other breaches of the legislation, for example the failure to give the correct notice of an increase in rent pursuant to section 24.
However, because the tenant did not apply for breaches other than those determined above, I have not taken these into account in making the award.
As Nicola Anderson, Brock Anderson has wholly succeeded with the claim I must award the filing fee.
The tenant did not ask for suppression.
No suppression is available to the landlord.

Tenancy Tribunal case 4781477 — Exemplary damages at 1411 Coast Road, Karitane, Waikouaiti 9471

At a glance

Tenancy Tribunal case 4781477 — Exemplary damages at 1411 Coast Road, Karitane, Waikouaiti 9471

At a glance

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Was there a written tenancy agreement?

Did the landlord fail to lodge the bond?

Did the landlord fail to comply with Healthy Homes Standards and state of repair?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Was there a written tenancy agreement?

Did the landlord fail to lodge the bond?

Did the landlord fail to comply with Healthy Homes Standards and state of repair?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions