Published tribunal order
Tenancy Tribunal case 4897126 — Tenancy dispute at 37 Newman Road, Eketahuna, Eketahuna 4900
Decided 24 Sept 2024 · Published 24 Sept 2024 · Application 4897126
Tenant favoured
- Exemplary damages
- Filing Fee
- Healthy homes
- Smoke alarms
Order
- Alan Gray must pay Sean Hayes and Roseanne Hayes $20.44 immediately, calculated as shown in table below:
- The tenants’ other claims are dismissed.
Reasons
- Both parties attended the hearing by video.
- The tenant has applied for refund of the bond. The landlord believes that has reasons to withhold all or some of the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
- The tenants also claim 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 conceded that he had not lodged the bond within time. I find he has committed an unlawful act.
- The tenants also claim that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. 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 0.9. 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.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A 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. See section 109(3) Residential Tenancies Act 1986.
- Mr Gray was a first-time landlord. He lived in the premises and intended to sell the property when he was approached by the tenants asking to rent it. He had no intention of becoming a landlord but wanted to help this family, so agreed to rent the premises to them.
- The premises were not insulated. Mr Gray made that clear to the tenants at the start of the tenancy. However, a landlord cannot contract out of the requirement to insulate. See section 11 Residential Tenancies Act 1986. I doubt that Mr Gray would have agreed to rent the property to Mr & Mrs Hayes’ if he had been aware of that. Mr Gray said that he could not afford to insulate the property and reiterated that he had wanted to sell it and only agreed to rent it to the tenants because they were living in a one-bedroom shearer’s cabin with young children. The tenant did not dispute that.
- Being well intentioned, does not relieve a landlord of its legal obligations. A landlord should be aware of its obligations and the requirements of the Residential Tenancies Act. However, I was not persuaded that it is appropriate to award exemplary damages for either unlawful act in this situation. The claims are dismissed.
- In reaching this conclusion, I also considered Mr Hayes’ comments that he really just wanted his bond back. He had not applied for compensation and did not provide any evidence in relation to compensation.
- As the tenant was partially successful, I have awarded reimbursement of the Tribunal application fee.