What was the outcome of Tenancy Tribunal case 5097147?

The tribunal order states: The Bond Centre is to pay the bond of $2,680.00 (3498350-014) to Kerrie Ann

How much money was awarded in case 5097147?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5097147?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Boarding House, Compensation.

Where can I read the official tribunal order for case 5097147?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11813823-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5097147?

The tribunal order states: The Bond Centre is to pay the bond of $2,680.00 (3498350-014) to Kerrie Ann

How much money was awarded in case 5097147?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5097147?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Boarding House, Compensation.

Where can I read the official tribunal order for case 5097147?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11813823-Tenancy_Tribunal_Order.pdf.

12 Woodside Road, Massey, Auckland 0612 Tenancy Tribunal Case 5097147 — Rent arrears

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Reasons

Only the tenant attended the hearing. There was no appearance by a representative from the landlord. As the landlord has been notified, the hearing proceeded.

After the hearing, the tenant forwarded a written statement, which has been taken into account.

This tenancy began on 5 September 2024. It was for a fixed term, due to end on 28 February 2025. In her application, the tenant has recorded that the tenancy ended on 26 September 2024.

The tenant’s evidence is that she moved out on 6 September 2024, being the day after the start of the tenancy. She found new tenants and gave them the keys on 26 September 2024. There is a rent summary prepared by the landlord (provided by the tenant at the hearing) showing rent due up to 29 September 2024.

The tenant has filed an application claiming a return of the bond, reduction of the fixed term tenancy, and compensation and exemplary damages for breaches by the landlord of obligations under the Residential Tenancies Act 1986 (the RTA), which may be listed as follows. • failure to lodge the bond within the required time frame • delays by the landlord in returning the bond • breach of the Healthy Homes Standards (HHS) with reference to the heating standard • concerns regarding the height of a fence at the back of the property and size of the lounge.

These claims are considered below. General legal principles

In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more like a fine. Exemplary damages are awarded at the Tribunal’s discretion. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. The bond

The tenant claims the return of her bond. While the bond has been lodged, the tenant claims exemplary damages for the landlord being late in lodging it. The tenant was concerned about the delays in her bond being returned by the landlord, and claims it was only lodged after she asked for it to be returned. The tenant states, in her application, that she had asked for the return of her bond since she handed over the keys on 26 September 2024, and the first response from the landlord was on 4 November 2024. Legal framework

The bond is money paid under a tenancy agreement as security for the performance of the tenant’s obligations under the tenancy agreement and the Residential Tenancies Act 1986 (the RTA). 1 The bond is the tenant’s money.

Section 22B(2) of the 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.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages. See section 19(2) and Schedule 1A of the RTA. Analysis

In this case, I find that the tenant is entitled to the return of her bond. This is because the landlord has not filed a counterclaim, as required under s22B of the RTA. In the absence of a counterclaim by the landlord, the bond is returned in full to the tenant, as ordered above.

In terms of whether the landlord has been late in lodging the bond, I find the evidence in this case is unclear. The tenant has provided evidence of a payment by Work and Income New Zealand (WINZ). However, this does not establish the date the landlord received the bond payment. What the evidence shows is that confirmation of lodgement of the bond was provided to the tenant on 11 October 2024, in a letter from Tenancy Services. This letter also records that payment was made by direct credit on 4 October 2024. In the absence of persuasive evidence establishing that the landlord failed to lodge the bond within 23 working days of receipt, the tenant’s claim for exemplary damages is dismissed.

The tenant also seeks compensation and exemplary damages for the delays in her bond being refunded. The tenant’s own evidence suggests there was a dispute between the landlord and tenant regarding liability for rent. The landlord’s rent summary suggests the landlord considers the tenancy ended on 29 September 2024, and that rent is payable up to this date. The evidence provided by the tenant also shows that the landlord sent her a completed bond refund form, recording that the amount of $1,722.86 was payable to the landlord, consistent 1 Section 2(1) definition of “bond” with the rent summary showing rent up to 29 September 2024. However, it seems she did not accept the landlord’s calculations.

Where there is a dispute about liability for rent or other costs at the end of the tenancy, this often results in delays in the bond being refunded to the tenant. In this case, it seems the landlord considered the tenant owed rent. Therefore, it is reasonable for the landlord to seek payment from the bond when completing the bond refund form. Accordingly, this claim is dismissed. Reduction of the fixed term tenancy Legal framework

Under a fixed term tenancy, a tenant has a contractual obligation to continue paying rent up to the end of the fixed term, unless the landlord agrees to release the tenant. 2 This means that a tenant cannot unilaterally break this obligation, since neither party is entitled to terminate unless by mutual consent or by order of the Tribunal. Consequently, a landlord is under no obligation to consent to an earlier release from the fixed term.

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.

Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) of the RTA. Analysis

The tenant’s reasons for seeking a reduction of the fixed term tenancy are that she was concerned about her child’s safety due to a fence at the back of the property not being high enough to prevent access to a creek, which was located behind the fence. Photographs of the backyard and fence were provided. She was also concerned about the lounge being divided in half to create a third room. In her written statement, the tenant notes that she accepted the tenancy out of 2 Residential Tenancy Law in New Zealand S. Benson, at 3.3 desperation, having lost her possessions in a house fire and spending months in emergency accommodation.

Having considered the evidence and submissions, if the Tribunal were to apply section 66, it would be unlikely to find in the tenant’s favour, since the reasons given do not establish there has been an unforeseen change in the tenant’s circumstances. While noting the reasons why she entered into the tenancy, the tenant would have likely viewed the premises before moving in (or if not, she ought to have viewed it). The features she was concerned about would have been present before the start of the tenancy. In these circumstances, there has been no unforeseen change. Without that part of the test being met, the Tribunal is unable to reduce the fixed term tenancy under section 66, as all three components must be satisfied.

Even if the tenant had established that there has been an unforeseen change in circumstances, as the landlord did not attend, there has been no evidence to weigh the hardship of the landlord compared to that of the tenant. There is also no basis to award compensation to the tenant, since new tenants have taken over the tenancy, and there is no evidence of the tenant incurring any additional costs arising from the fixed term ending early. Furthermore, where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss under section 66(2) of the RTA.

In this case, there is no landlord application, although it seems, from the landlord’s rent record (provided in evidence by the tenant), that the landlord considers the tenancy ended on 29 September 2024. However, I need not make a finding on that, in the absence of an application by the landlord for rent arrears. Healthy Homes Standards

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS heating standard.

Compliance dates for the HHS vary depending on the tenancy: • For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

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. The HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded. See section 45(1A).

The tenant claims the landlord is in breach on the basis that the heat pump, located in the lounge, is too large for the area. She considers this to be dangerous, as the heating capacity is too much for the area. The tenant notes that the lounge had been converted into two rooms and was very small. She provided photographic evidence of the lounge.

On this issue, I find that the tenant has not established, with sufficient evidence, that the landlord has been in breach of its obligations regarding the HHS heating standard. It is clear there is a heat pump in the lounge, and therefore, there is a fixed heater in the main living room which appears to meet the required heating capacity. There is a minimum heating capacity that the qualifying heater must reach. The tenant does not need to use the heater, or turn it up to its maximum heating capacity. Furthermore, there has been no evidence to support the claim that the heat pump is unsafe. Therefore, this claim is dismissed. Other claims

The tenant claims that the fence separating access to a creek is too low, and she felt it was not legal. While the photographic evidence of the fence and the tenant’s concerns for the safety of her son are noted, in the absence of further supporting evidence, this claim has not been established, to the required standard, and is dismissed.

The tenant seeks exemplary damages for the landlord converting the lounge into two rooms. She felt that the lounge was very small and inadequate for its purpose. While the photographic evidence of the lounge is noted, the tenant has not provided any supporting evidence to show that the lounge itself is unlawful. The evidence the tenant has provided about how the place was advertised shows that the premises was in fact advertised as a two-bedroom property. So, it seems the advertisement provided is consistent.

The tenant has also noted the tenancy agreement records a maximum of three people, although four names are recorded. I accept there is some inconsistency and may be an error.

As noted above, exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. In this case, I find the tenant has not established that the landlord has committed a defined unlawful act and therefore, there is no award for exemplary damages.

Looking at the circumstances overall, and applying the principles in section 85 of the RTA, it may be observed that the tenant has gained a benefit from leaving a fixed term tenancy so soon, in a situation where the Tribunal may not have reduced the term of the tenancy. The tenancy was very brief, and so, if any breaches had been established, they would be for such a short period of time that there may not be grounds for compensation. The fact that the Tribunal can award compensation and exemplary damages does not mean that it always should. The just outcome in this case is for the tenant to receive her bond back and for matters to be left there. Filing fee and name suppression

There is no reimbursement of the filing fee, since the tenant has not been substantially successful.

The tenant does not seek name suppression.

Reasons

Only the tenant attended the hearing. There was no appearance by a representative from the landlord. As the landlord has been notified, the hearing proceeded.

After the hearing, the tenant forwarded a written statement, which has been taken into account.

This tenancy began on 5 September 2024. It was for a fixed term, due to end on 28 February 2025. In her application, the tenant has recorded that the tenancy ended on 26 September 2024.

These claims are considered below. General legal principles

Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) of the RTA. Analysis

The tenant has also noted the tenancy agreement records a maximum of three people, although four names are recorded. I accept there is some inconsistency and may be an error.

There is no reimbursement of the filing fee, since the tenant has not been substantially successful.

The tenant does not seek name suppression.

Tenancy Tribunal case 5097147 — Rent arrears at 12 Woodside Road, Massey, Auckland 0612

At a glance

Tenancy Tribunal case 5097147 — Rent arrears at 12 Woodside Road, Massey, Auckland 0612

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions