Published tribunal order
Tenancy Tribunal case 4925873 — Exemplary damages at 11 Len Davis Terrace, Pirimai, Napier 4112
Decided 7 Aug 2024 · Published 7 Aug 2024 · Application 4925873
Tenant favoured
- Exemplary damages
Order
- The Bond Centre is to pay the bond of $1,000.00 (5570434-001) to Dylan McCormack and Shauneisha Wagenaar immediately.
- Claire Procter must pay Dylan McCormack and Shauneisha Wagenaar $1,520.00 immediately, as shown in the table below.
Reasons
- Both parties attended the hearing. Bond
- The tenants have applied for refund of the bond. The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 (“RTA”) 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 tenants. Tenants’ claims
- The tenants claim that the landlord has breached her obligations by: a. failing to provide required information in the tenancy agreement; and b. failing to ensure the premises comply with Healthy Homes standards.
- Section 13A RTA sets out the information that landlords must provide to tenants in teh tenancy agreement. That information includes: a. (s.13A(1A)) - an insulation statement; b. (s.13A(1CA) – a Healthy Homes compliance statement; c. (s.13A(2)) – an insurance statement.
- Failing to provide that information is, in each case, an unlawful act for which exemplary damages of up to $750.00 may be awarded (s.13A(1F)).
- It is not disputed that the agreement did not provide that required information and the landlord has thereby committed an unlawful act.
- 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 interest of the other party, and the public interest. See section 109(3) RTA.
- In that regard, an unlawful act has been committed intentionally if the act itself was intentional, an intention to act unlawfully is not required.
- Here, the landlord says that she had not rented out a property before and was unaware of her obligations under the RTA. She says that the tenants provided the agreement and she just signed it.
- The tenants acknowledge that they were told that the ceiling had no insulation because it is a skillion roof in which insulation cannot be practically installed. They say that had they been given information about the premises’ compliance with heating and draught stopping standards they may have made different decisions about taking the tenancy.
- What is clear is that the landlord committed a breach of her obligation to provide required information to the tennats, because she did not make herself aware of her obligations as a landlord. The is no evidence of an intention to advantage herself from the breach.
- The consequences, in terms of actual compliance and any effect on the tenants’ use and enjoyment of the premises are better considered in connection with the tenants’ other claims.
- There is a public interest in landlords making themselves aware of what their legal obligations are.
- The landlord’s breach of her obligation to provide the information noted, comprises multiple unlawful acts, but arises from the same lack of awareness of her obligations.
- In my view an award of exemplary damages that would be significant for a single breach, would be just. Healthy Homes compliance
- Section 45(1)(bb) requires that landlord comply with the Healthy Homes standards. 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(1A).
- Dates by which premises are required to meet Healthy Homes standards vary depending on the tenancy.
- As this was a private rental that commenced between 28 August 2022 and 3 March 2025, it was required to comply within 120 days of the start date.
- The tenants say that the premises were very cold and question whether they complied with the insulation, draught stopping or heating standards.
- It is possible that the premises complied with the insulation standard without ceiling insulation, due to exemptions that apply where it is not reasonably practical to install insulation.
- There is no evidence enabling me to assess whether the premises complied with the draught stopping standard. The landlord has not had any compliance assessment done, as she has moved back into the premises herself.
- The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
- The HHS does provide exemptions in specific circumstances.
- The landlord has had no assessment done of the level of heating required.
- When the tenancy heating there was a non-compliant enclosed fire which could not be used. There was a free standing “pot belly” type fire which the landlord says is non-compliant but which both the landlord when she lived in the premises and the tenants, used. In addition there was a free standing radiant heater which the landlord says had a capacity of 2600w.
- The landlord intended to sell the premises and in February/ March 2024 told the tenants that she would be removing the pot belly fire before the sale as she wanted to keep it.
- Another radiant heater which the landlord says had a capacity of 2400w was provided.
- Though the landlord expressed an intention to have that heater mounted, it never happened.
- Regulation 8 of the Residential Tenancy (Healthy Homes Standards) Regulations 2019 requires that the main living room of the premises be heated by a qualifying heater with the prescribed heating capacity.
- To be a qualifying heater the heater must be installed as a fixture to the premises. That was not the case here and the landlord has accordingly breached her obligation to meet the Healthy Homes heating standard.
- From the the evidence provided I find it more likely than not that as well as the heater being a non qualifying heater, it was of inadequate heating capacity.
- The landlord has thereby committed an unlawful act.
- In looking at the criteria in s.109(3) referenced above, I take into account that the landlord does appear to have been mindful of and responsive to the tenants’ need for heating, offering the additional heater when told that the tenants were using a fan heater to heat their child’s room saying in a txt on 14 March 2024, “The radiant heater will be more economical than your wee fan, I found it really good. I also have a oil heater you could use if you like”.
- A reply txt from the tenants to the landlord reads, “Understandable on the heating situation, it’s not too cold just yet in the house, we use a little heater in our room for the cold mornings but hopefully the house sells before winter otherwise we will have to find a reasonable solution.”
- The tenants’ evidence is that as winter approached they made their concerns about the adequacy of the heating known to the landlord in conversation but no additional heating was provided. The landlord denies those conversations took place.
- The evidence does not prove a refusal on the landlord’s part to supply additional heating – though it is notable that a heat pump has been installed now that she is living in the premises herself.
- Again, it seems that the situation mostly reflects the landlord’s failure to be aware of her legal obligations rather than willingly breaching them.
- I take into account that this was a tenancy of relatively short duration but also that it was the tenants who bore the consequences of the landlords’ lack of awareness of her obligations.
- Again, there is a public interest in landlords being aware of obligations about which there is ample information readily available.
- Considering those factors, I find that a moderate award of exemplary damages would be just.
- As the tenants have had claims upheld. I reimburse the filing fee.