What was the outcome of Tenancy Tribunal case 4816424?

The tribunal order states: Michelle Godsiff must pay Deshaan Tehuia $1,665.00 immediately, calculated

How much money was awarded in case 4816424?

Refund Over-Paid Rent: $1,665.00 awarded to tenant

What type of tenancy dispute was case 4816424?

The dispute type was not classified.

Where can I read the official tribunal order for case 4816424?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10616030-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4816424?

The tribunal order states: Michelle Godsiff must pay Deshaan Tehuia $1,665.00 immediately, calculated

How much money was awarded in case 4816424?

Refund Over-Paid Rent: $1,665.00 awarded to tenant

What type of tenancy dispute was case 4816424?

The dispute type was not classified.

Where can I read the official tribunal order for case 4816424?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10616030-Tribunal_Order.pdf.

338 Clifton Road, Whitford, RD 1, Whitford 2571 Tenancy Tribunal Case 4816424 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4816424 — net $1,665.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund over-paid rent	$1,665.00	Refund over-paid rent
Net award	$1,665.00
Total payable by Landlord to Tenant	$1,665.00

Both parties attended the hearing on 23 July 2024. I adjourned the hearing with directions for the landlord to provide additional evidence. The hearing concluded on 26 July 2024. Background

The tenancy started on 20 October 2022 and ended on or about 25 March 2024.

The premises are located on a rural block which comprises other premises and garden/farmland, though that was not part of this tenancy.

The landlord previously operated a pre-school from the premises for about 21 years. The premises the tenant rented were decorated before the tenancy started.

The tenant has applied for compensation and/or exemplary damages for alleged breaches by the landlord, including: •The failure to lodge the bond •Breaches of the Healthy Homes Standards (HHS) • A failure to supply a written tenancy agreement at the start of the tenancy •A rent refund •Compensation for breaches of her quiet enjoyment. Relevant legal principles Compensation

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for the loss of enjoyment of the tenancy.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach • The duration of the breach; and • The effect of the breach on the party. Exemplary damages

Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Residential Tenancies Act 1986 (RTA).

In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.

Exemplary damages must be sought within 12 months of the date of the commission of the unlawful act - see section 109(2)(b) RTA. That time frame does not apply to bonds. Responsibilities at start of tenancy

Section 13 RTA provides: Tenancy agreement must be in writing and signed (1) The landlord must ensure that the tenancy agreement is in writing. (2) The landlord must, before the tenancy commences,— (a) sign the tenancy agreement; and (b) provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it). (3) The tenant must sign the tenancy agreement. (4) A landlord who fails to comply with subsection (1) or (2)— (a) commits an unlawful act; and (b) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B. Landlord’s responsibilities

Section 45 RTA provides in part: Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; Quiet enjoyment

Section 38 RTA provides 38 Quiet enjoyment (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant. (3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act. (3A) Without limiting the generality of subsection (3), the landlord commits an unlawful act under that subsection if the landlord enters the premises purportedly under section 48(2B) without any reasonable cause to believe that the tenant has abandoned the premises. (4) In this section premises includes facilities. Discussion and findings The bond

The landlord received a bond of $1,300.00 on 7 November 2022. She did not lodge the bond. She said as a first-time landlord she was unaware she had to. She kept the bond in a separate account and then used it at the tenant’s suggestion for power costs incurred and for the repair of damage.

If I were to make an order for the refund of the bond to the tenant, the landlord would simply make a claim for the costs (power and repairs) that she used the bond for. I accept her evidence that the tenant authorised her to apply the bond to those things, apparently at the suggestion of a Work and Income case manager.

Nor am I persuaded to award exemplary damages. The necessary element of intent is absent here. The landlord said she was a first-time landlord unaware of what she needed to do.

Generally, ignorance of the law is no defence. But events have over-taken the tenant’s application for exemplary damages for the non-lodgement of the bond.

I accept the landlord’s evidence that she was authorised by the tenant to take the bond and apply it to power charges and repairs.

I dismiss this part of the tenant’s application. Breaches of the HHS

The tenant claims that the landlord breached the HHS because the premises had rats and other vermin. She said she tried her best to control them, but items of clothing and some chattels were damaged by mouse urine and soiling.

Generally, the responsibility to control vermin rests with the tenant; it is not a landlord breach because it is not something over which the landlord usually has control.

These premises were located rurally; there was a garden and farmland adjacent to the premises.

The landlord said she laid poison when the tenant told her about the vermin. She said since 1981 there had never been a problem, nor did the current tenant experience issues with vermin. She said she was extremely fussy, having run the property as a pre-school for many years.

The presence of vermin is not a breach of the HHS. The HHS relate mostly to heating, ventilation and insulation.

I do not find that the landlord breached her responsibilities as a landlord under section 45 RTA to provide the premises clean and in a reasonable state of repair, and to maintain the premises during the tenancy.

I dismiss this part of the tenant’s application. Failure to supply a written tenancy agreement

The tenant said that she never received a copy of the tenancy agreement after she signed it. The landlord said she delivered a copy of the agreement to the tenant the next day.

The tenant confirmed that she took photos of the pages of the tenancy agreement so she could provide the agreement to Work and Income.

I find it probable that the tenant received the tenancy agreement. If not, she had a copy as she took photos of the pages.

The remedy for this alleged breach is exemplary damages. Because the alleged breach occurred more than 12 months before the date of the tenant’s application, exemplary damages cannot be awarded.

I dismiss this part of the tenant’s application. Rent refund

The tenancy agreement provided for rent of $650.00 per week. The landlord said she was surprised when Work and Income made payments of $695.00 per week. When she told the tenant about that, she said the tenant’s response was word to the effect ‘that’s lucky for you’ and ‘that’s a bonus’.

The tenancy agreement is a contract. When the landlord changed the agreement to show rent of $695.00 that was what is called a unilateral variation of contract. The law does not allow for that.

The tenant’s rent was $650.00 per week. The landlord accepted that.

I adjourned the hearing for the landlord to produce evidence of the rent payments she received and the amount of over-paid rent. She has done that.

The landlord’s response is more far reaching than I requested, and I will not address the other matters she has commented on. The adjournment and direction for further evidence was specific to the issue of rent.

I find that the tenant (through Work and Income) over-paid rent amounting to $1,665.00 as set out in the landlord’s calculations of the rent she received. The tenant provided no evidence of the payments made. The landlord must pay the over-paid rent back to the tenant. Breaches of quiet enjoyment

The tenant said the landlord constantly came to the premises and entered multiple times without notice. She said she felt very judged because of her dyslexia and mental health issues.

The landlord explained that the property overall comprises 5 separate spaces with shared zones for parking and shared entrance ways. She said she and the tenant enjoyed a good relationship and she would often drop off produce to her. She said she loved the tenant and her young child and bought them Christmas presents.

The tenant did not serve any notices on the landlord during the tenancy for alleged breaches of quiet enjoyment or raise any issues with her. She said, due to her anxiety, she ‘couldn’t voice it’.

Injured feelings do not attract compensation. Breaches must be more significant than that. My observation of the parties was that they got along well. Indeed, at the end of the hearing they hugged each other and were friendly.

Even if there were occasions when the landlord went to the premises, I do not find that the landlord breached the tenant’s quiet enjoyment to an extent that should attract an award of compensation. The way the premises were located meant that some spaces were shared; contact was inevitable.

The landlord said the only occasion when she entered without notice was when she found the tenant’s young child close to the road and took him back. I accept that.

I dismiss this part of the tenant’s application. Result

The landlord will pay the tenant $1,665.00 being a refund of over-paid rent.

The remainder of the tenant’s application is dismissed.

I make no order for reimbursement of the filing fee as the application is only partly successful. Name suppression

On my enquiry, neither party sought a name suppression order.

Reasons

Claims and awards in Tenancy Tribunal application 4816424 — net $1,665.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Refund over-paid rent	$1,665.00	Refund over-paid rent
Net award	$1,665.00
Total payable by Landlord to Tenant	$1,665.00