What was the outcome of Tenancy Tribunal case 4871221?

The tribunal order states: Nilesh Kumar trading as Find A Space must immediately pay Keegan Daniel

How much money was awarded in case 4871221?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4871221?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4871221?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10919283-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4871221?

The tribunal order states: Nilesh Kumar trading as Find A Space must immediately pay Keegan Daniel

How much money was awarded in case 4871221?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4871221?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4871221?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10919283-Tenancy_Tribunal_Order.pdf.

34A Amaru Road, One Tree Hill, Auckland 1061 Tenancy Tribunal Case 4871221 — Cleanliness

Order

Nilesh Kumar trading as Find A Space must immediately pay Keegan Daniel Lane and Nicole Beavis $1,454.73 calculated as shown in the table below.
The claims are allowed as sent out in this order and its

Reasons

. All other claims are dismissed. DescriptionTenant Exemplary damages: TA - omitted info$250.00 Compensation: Locks - s 66I(1)(d)$150.00 Compensation: breach duty to ensure facilities clean$1,034.29 Filing fee reimbursement$20.44 Total award$1,454.73 Reasons:

The tenants attended the hearing in person. 1
Nilesh Kumar attended in person also. Mr Kumar uses the trading name Find A Space. 1 The hearing was 18 September 2024 at the Auckland District Court.
The tenants claim that the landlord’s tenancy agreement omitted necessary information and was misleading, that the landlord did not ensure the locks were maintained to ensure the premises were secure, did not ensure that the facilities were reasonably clean and that house rules were in place and observed, that the landlord did not display the house rules and evacuation procedure, and that the rent exceeded the market rent.
For remedy, the tenants seek orders for exemplary damages and compensation. Background
Mr Kumar purchased the Find A Space property management business in about July of 2022.
Find A Space had been operating for some years prior to Mr Kumar’s purchase of it and its portfolio included boarding houses of which this premises is one.
Upon taking over the business, Mr Kumar continued many of Find A Space’s pre-existing business practices, including using Find A Space’s old boarding house agreement templates.
Mr Lane and Ms Beavis’s tenancy began on 6 February 2023, and they signed one of the original template agreements.
Regrettably, the template agreement was poorly drafted. The version of if for the tenants describes the premises as a “1 x Master Ensuite Room: 34a Amaru Road”. The agreement lacked many of the terms required for a boarding house tenancy agreement such as an insulation statement, a healthy homes compliance statement, and a fire evacuation procedure.
The agreement contained an unlawful term that the tenancy was for an initial fixed term of six months, when in fact boarding house tenants have the right to terminate the tenancy by giving at least 48 hours’ notice. 2
The tenants say they were not even aware that the house was a boarding house and were surprised that as many as 14 people were sharing the facilities. They say there were no adequate house rules describing cleaning duties or a roster that the landlord ensured compliance with. They did more than their fair share of cleaning, but the shared facilities were still not reasonably clean and were sometimes quite filthy. They submit the landlord did not get the facilities professionally cleaned regularly enough. In their application, among other things, they state: 2 Residential Tenancies Act 1986 (RTA), s 66V(1). This is a poorly communicated boarding house agreement...it did not include the healthy homes compliance report, nor a fire evacuation plan...it is the property managers responsibility to ensure shared spaces are clean and tidy...however this was never the case... ...[P]roperty manager, completely dissociated from the house...[N]o fire evacuation plan or house rules anywhere or abided by. Code on front door never changed, we had intruders including old tenants...Shared living spaces never in reasonable state of cleanliness.
Mr Kumar initially felt overwhelmed when he took over Find A Space. Realising that he needed assistance with understanding his landlord obligations, he consulted with Tenancy Services in about April of 2023 for its assistance.
The landlord previously applied to the Tribunal for rent arrears. The Tribunal ordered rent arrears of $3,350.00 on 1 May 2024. 3
The issues for determination in this claim are: a. Did the tenancy agreement omit necessary information? b. Did the landlord ensure the facilities were kept reasonably clean? c. Did the landlord ensure the premises were reasonably secure? d. Did the landlord display a copy of the house rules and fire evacuation procedures? e. Was the rent in excess of market rent?

Did the tenancy agreement omit necessary information?

Tenancy agreements, including boarding house tenancy agreements, must contain among other things, an insulation statement, and a healthy homes statement. 4
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. 5
Boarding house tenancy agreements should also contain a description of the fire evacuation procedures that apply to the premises.
The tenancy agreement did not contain an insulation statement or a healthy homes statement.
The landlord has therefore committed an unlawful act. 3 [Landlord] v Beavis [2024] NZTT 4831818 4 RTA, s 13A(1A), (1CA) 5 RTA, s 13(1F)(a) and Schedule 1A.
The landlord had been operating Find A Space for seven months by the beginning of this tenancy. Mr Kumar must have been aware of his basic legal obligations by this time. I am satisfied that the breach was intentional.
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. 6
I am satisfied that it would be just to award exemplary damages. Mr Kumar’s intention was not malicious, but he should have complied with his duties under the RTA. In April of 2023 Mr Kumar engaged with Tenancy Services for assistance, which indicates a desire to comply. Non-compliance makes it more likely that landlords will overlook the basic standards that ensure a home is healthy for its tenants. It is in the tenants’ interests that the breach is vindicated. It is in the public interest that landlords are incentivised to comply with their obligations. Boarding house tenants are liable to be more vulnerable members of the community, so the public interest in protecting them is heightened.
In all of the circumstances, I set exemplary damages at $250.00.

Did the landlord ensure the facilities were kept reasonably clean?

Boarding house landlord have a duty to ensure the common facilities such as cooking facilities and living and dining areas are reasonably clean. Section 66I(1) of the RTA provides: 66I Landlord’s ongoing obligations (1) The landlord of a boarding house must, at all times,— (a) ensure that the facilities of the premises are in a reasonable state of cleanliness...
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7,200.00.
The tenants say that there were no clear house rules about cleaning. There was a roster of sorts, but the boarding house tenants’ duties were not clearly spelt out. Nobody knew what they were supposed to do, and nobody followed up on those tenants who did not clean when they were supposed to. Mr Lane and Ms Beavis felt that they did more than fair share of cleaning, but the facilities were usually unclean and unhygienic. A contracted cleaner was supposed to regularly clean, but the tenants say the professional cleaning was seldom done. 6 RTA, s 109(3).
Mr Kumar says one of the boarding house’s other tenants was a “head tenant” who was supposed to organise the rostered tenant cleaning as his agent. However, it appears that she was not effective in that role.
Mr Kumar provided cleaning invoices showing that during the tenancy Find A Space paid for cleaning at the premises on 8 February 2023, 2 March 2023, 25 March 2023, 21 April 2023, 27 April 2023, 16 June 2023, 25 August 2023, 30 September 2023, 23 December 2023, 18 January 2024, and 2 February 2024. This indicates that professional cleaning was done intermittently on about eleven occasions. Sometimes the professional cleaning was completed only about two weeks apart, on other occasions it appears the cleaning was not done for over a month and was not done at all in October and November of 2023.
The tenants say there were no written house rules about cleaning. Mr Kumar says there were house rules that set out cleaning duties that were pinned to fridge in the kitchen. Neither party has produced a copy of the rules, however. If there were rules, there is no certainty what they were.
The tenants submitted photographs showing the facilities were not clean on various occasions, and WhatsApp group chat for the tenants that included negative comments about the state of cleanliness and premises. This evidence was not overly persuasive in itself but supported their evidence that the common areas were often not reasonably clean.
I find it proven on the balance of probabilities that the facilities at the boarding house were frequently not in a reasonable state of cleanliness.
It is more probable that not that the landlord did not ensure the reasonable cleanliness due to not promulgating clear house rules as to the boarding house tenants’ rostered cleaning duties. Nor were the cleaning duties monitored and omissions followed up with the tenants concerned. Moreover, the additional professional cleaning was done regularly with adequate frequency.
Mr Kumar asked the Tribunal to provide guidelines for what he had to do to comply with his cleanliness obligations if it was to find that he had failed in his duties. I indicated it was not the Tribunal’s role to advise him in that way. Nor could the Tribunal begin to definitively set out guidelines without visiting the premises and exploring the entire circumstances of the boarding house.
That said, if Mr Kumar provided written house rules specifying cleaning duties with a proper roster, the head tenant had monitored compliance and followed tenants up on defalcations, Mr Kumar supported his head tenant in that task, and professional cleaning was done to a good standard every fortnight, the Tribunal may have in this case (depending on all the circumstances) have been inclined to finding the landlord had not breached their obligations.
The landlord committed an unlawful act. Where the landlord commits the unlawful act intentionally, the Tribunal may order exemplary damages. I am not satisfied that Mr Kumar intentionally committed the unlawful act.
Mr Kumar purchased the business not long beforehand. He struggled to obtain a dependable professional cleaner and he was let down by his agent at the premises, the head tenant. Therefore, exemplary damages are not available for the breach.
The landlord is however liable to the tenants for the breach for their loss of amenity.
I quantify the tenants’ loss of amenity at $20.00 per week. Over the tenancy period that amounts to $1,454.73.

Did the landlord ensure the premises were reasonably secure?

The landlord maintain locks and other similar devices as necessary to ensure that the premises are reasonably secure.
The front door to the premises was secured by a keypad lock. However, the landlord never changed the passcode for the lock during the tenancy even though multiple tenants moved out during the tenancy.
I am satisfied that not changing the code meant the premises were not reasonably secure. Any previous tenant could access the premises as if they had retained a key to the back door, say.
The landlord says once again that his head tenant failed to carry out her duties in that regard.
I am not satisfied the landlord’s breach was deliberate. Exemplary damages are not available.
I order nominal damages of $150.00 to recognise the breach.

Did the landlord display a copy of the house rules and fire evacuation guide?

Boarding house landlords must ensure that copies of the house rules and fire evacuation procedures are on display in the premises at all times. 7
The tenants say these were never on display. The landlord says they were.
The tenants bear the onus of proving the claim on the balance of probabilities. 7 RTA, s 66I(1)(g).
The tenants did not file their claim until more than two months after they had left the premises. Consequently, they could not do a simple fact-check of whether the rules and procedures were not displayed as they claim or provide that evidence to the Tribunal.
On all the evidence, I am not persuaded that the relevant facts are more probably than not.
It follows, this claim must be dismissed.

Did the rent exceed market rent?

The tenants wished to claim that the rent they paid exceeded market rent. However, an order for market rent cannot have effect earlier than the date of the application. 8
Because the tenants’ application was filed after the tenancy ended, an order having effect cannot be made. The claim is therefore moot.
It follows, the claim is dismissed. Filing fee
The landlord must reimburse the tenants for the filing fee. 9

Tenancy Tribunal case 4871221 — Cleanliness at 34A Amaru Road, One Tree Hill, Auckland 1061

Tenancy Tribunal case 4871221 — Cleanliness at 34A Amaru Road, One Tree Hill, Auckland 1061

Order

Reasons

Did the tenancy agreement omit necessary information?

Did the landlord ensure the facilities were kept reasonably clean?

Did the landlord ensure the premises were reasonably secure?

Did the landlord display a copy of the house rules and fire evacuation guide?

Did the rent exceed market rent?

Order

Reasons

Did the tenancy agreement omit necessary information?

Did the landlord ensure the facilities were kept reasonably clean?

Did the landlord ensure the premises were reasonably secure?

Did the landlord display a copy of the house rules and fire evacuation guide?

Did the rent exceed market rent?