What was the outcome of Tenancy Tribunal case 4899321?

The tribunal order states: Craig Smith, Elti Sannyasi, Marjorie Vessey, Shahriar Faramazi and Sula

How much money was awarded in case 4899321?

Compensation: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4899321?

The dispute type was not classified.

Where can I read the official tribunal order for case 4899321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186507-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4899321?

The tribunal order states: Craig Smith, Elti Sannyasi, Marjorie Vessey, Shahriar Faramazi and Sula

How much money was awarded in case 4899321?

Compensation: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4899321?

The dispute type was not classified.

Where can I read the official tribunal order for case 4899321?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11186507-Tribunal_Order.pdf.

20 Crampton Road, Reefton, Reefton 7830 Tenancy Tribunal Case 4899321 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4899321 — net $420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$400.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$420.44
Total payable by Landlord to Tenant	$420.44

Claims and awards in Tenancy Tribunal application 4899321 — net $420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$400.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$420.44
Total payable by Landlord to Tenant	$420.44

Order

Craig Smith, Elti Sannyasi, Marjorie Vessey, Shahriar Faramazi and Sula Poliko-Sannyasi as trustees of the Poliko Community Wellbeing Trust must pay Stuart Keenan $420.44 immediately, calculated as shown in table below:
The application for exemplary damages is dismissed.
The application for a declaration that the landlord’s notice to terminate the tenancy was a retaliatory notice is dismissed.

Reasons

Both parties attended the hearing. Mr and Mrs Sannyasi, the managers of the complex where the premises were located, attended for the landlord in person. Mr Smith, one of the trustees of the landlord Trust, attended by phone.
The tenant has applied for compensation and exemplary damages for what he alleges were breaches by the landlord of the insulation standards and the Healthy Homes Standards (HHS) and for a declaration that the landlord’s notice to terminate the tenancy was a retaliatory notice. He has also raised the legality of the landlord requiring him to pay a pet bond. Background
The background to this application is set out in the decision by Adjudicator Armstrong dated 26 August 2024.
The Tribunal referred the application to mediation, but no mediation was held.
The landlord Trust is a charitable trust set up to benefit the residents of Reefton. It has variously run a food bank, provided curtains for warmth to members of the community, and run yoga and weaving classes all without charge.
Separately, the Trust provided emergency accommodation for those desperate to find somewhere to live on a temporary basis.
The premises comprise several cabins built in 1951. Four cabins have been refurbished and are rented bringing in the Trust’s sole income. Another 5 require substantial renovation work.
The Trust is soon to decide how it will proceed; whether it will refurbish the cabins to make them compliant with the provisions of the Residential Tenancies Act 1986 (RTA) or whether it will demolish them and build from scratch.
Mr Keenan, who obtained this accommodation as part of a placement that met the Trust’s objectives, complained to the landlord about repair and maintenance issues. Eventually he served a 14-day notice for repairs. He was especially concerned that the premises were not adequately insulated and did not appear to comply with the HHS.
Soon after his 14-day notice, the landlord issued a 90-day notice on 24 May 2024 terminating the tenancy because extensive alterations, refurbishment, or repairs were to be carried out. The landlord terminated the tenancies of all tenants whose cabins required work, 5 in total although for one tenancy a rent arrears issue had to be worked through first.
Mr Keenan’s tenancy ended on 12 August 2024 slightly before the termination date.
The matter first came before the Tribunal on 26 August 2024. The Tribunal made an order referring the dispute to mediation with directions for the provision of evidence should the matter return to hearing.
Today, I heard evidence from the (volunteer) managers of the cabins, from Mr Smith a trustee, and from the tenant. Issues
The Tribunal must determine these issues: •Did the landlord fail to comply with the insulation standards and the HHS? If so, what should be the consequence? •Was the landlord’s notice to terminate the tenancy a retaliatory notice? If so, what should the remedy be? •Could the landlord charge a pet bond? Relevant legal considerations
Section 45 RTA sets out a landlord’s responsibilities. Among other things, a landlord must provide the premises in a reasonable state of repair, maintain them, comply with the HHS, and comply with other regulations that relate to health and safety, such as the insulation requirements.
Section 54 RTA provides:
Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
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 claim is for the loss of enjoyment of the tenancy due to the landlord’s failure to meet its section 45 RTA responsibilities.
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 are different. They are designed to punish and to deter. They are like a fine.
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 RTA.
In Birch 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.

Did the landlord fail to comply with the insulation standards and the HHS?

If so, what should be the consequence?

The landlord admitted that the premises did not comply with the insulation requirements of the legislation or with the HHS. Compliance for this tenancy was required by 7 June 2024. By then the landlord had given notice to terminate the tenancy.
The tenant described how the premises were draughty, there were gaps under doors, and there was no fixed source of heating. There was no underfloor insulation nor was the ceiling insulation adequate.
The tenant raised repair issues with the landlord. There were delays in repairs being done, due largely to the difficulty sourcing contractors in Reefton to do the work. And there were instances when the tenant was unwilling to allow access.
I do not find that the landlord erred so far as attempting to arrange for repairs and maintenance. But I must find that the landlord did not comply with either the insulation or the HHS requirements set out in the RTA.
So, what consequence should follow? For the Tribunal to award exemplary damages it must be satisfied that the landlord ‘turned its mind to the act and deliberately set about to commit it’
The landlord Trust is a charitable trust whose objectives are to do good in the community including providing emergency accommodation to those who otherwise might go homeless. That is laudable. But it does not mean that the Trust as landlord is exempt from the responsibilities the RTA imposes on all landlords.
The landlord Trust should not have offered the premises for rent because they were non-compliant, even though that meant some people missing out on housing. I find that in doing so, the Trust was negligent, but it did not act intentionally. It was just misguided.
Without the necessary element of intent, the Tribunal cannot award exemplary damages. That application is dismissed.
Compensation is different and separate. It recognises a tenant’s losses. The tenant experienced a loss of enjoyment of his tenancy because of the deficiencies due to draught, lack of insulation, moisture, a non-compliant heating source, and a non-functioning extractor fan in the bathroom and an absent fan in the kitchen.
The tenancy did not last long. The Trust has charitable purposes for the Reefton community. Neither the trustees nor the managers of these units are paid. The Trust’s income is solely from rents.
Taking these matters into account I award the tenant compensation of $400.00 for his loss of enjoyment of the tenancy. Was the landlord’s notice to terminate the tenancy a retaliatory notice? If so, what should the remedy be?
The landlord’s representatives gave evidence that once they received the tenant’s 14-day notice for repairs they realised they could not continue to rent non-compliant premises, even though the accommodation was for emergency housing.
Having made that decision, they terminated the tenancy not just of this tenant but also the tenants of four other cabins where similar remediation work is required. The trustees have still to decide whether to renovate or rebuild.
I do not find that the landlord acted in retaliation for the tenant’s 14-day notice. The Trust does not have funds to ensure all the cabins it rents are HHS compliant. To continue renting them would place it in an impossible situation, knowingly renting premises that are non-compliant with the RTA.
The Tribunal foreshadowed this in its order dated 26 August 2024. It said: The fact that a landlord’s termination notice follows a short time after a tenant’s breach notice can be an indication of retaliation, but it is not necessarily so. Where a landlord perceives that substantial work is needed to remedy a defect or defects brought to their attention, terminating the tenancy may be a responsible step for the landlord to take.
This is one of those situations where the tenant quite properly raised repair and maintenance issues and breaches of the HHS, but the landlord’s only viable option, and therefore its response, was to end the tenancy to complete the substantial work required.
The evidence does not show that the landlord acted in retaliation in this case. It acted out of necessity to prevent continuing breaches of its RTA responsibilities.
The application for a declaration that the notice to terminate the tenancy was a retaliatory notice is dismissed.

Could the landlord charge a pet bond?

The answer to this question is no. The government has introduced a statutory amendment to the House that will allow for pet bonds, but that has not been enacted yet.
The landlord had no authority to charge a pet bond. However, once the tenant objected it reversed that decision and made sure the pet bond was returned to the tenant.
Not every breach by a landlord requires a response by the Tribunal. This is such a case. The tenant, having received the wrongly charged pet bond, has suffered no further loss. The error has been rectified. Result
The landlord will pay the tenant compensation of $400.00 for his loss of enjoyment of the tenancy due to the premises not being compliant with the insulation requirements of the RTA and the HHS. I also award the tenant the Tribunal filing fee of $20.44.
The application for exemplary damages is dismissed.
The application for a declaration that the notice to terminate the tenancy was a retaliatory notice is dismissed.
The Tribunal makes no order in regard to the pet bond charged but since reimbursed. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4899321 — Tenancy dispute at 20 Crampton Road, Reefton, Reefton 7830

At a glance

Tenancy Tribunal case 4899321 — Tenancy dispute at 20 Crampton Road, Reefton, Reefton 7830

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to comply with the insulation standards and the HHS?

If so, what should be the consequence?

Could the landlord charge a pet bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to comply with the insulation standards and the HHS?

If so, what should be the consequence?

Could the landlord charge a pet bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions