Tenant Awarded Compensation for Breaches of Maintenance and Alterations

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[2025] NZTT 4998308

TENANCY TRIBUNAL - Dunedin | Ōtepoti

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY] As Agent For [NAME] must pay [NAME] and [NAME] $7,627.00 immediately, calculated as shown in table below:

2. The claim for further compensation of $37,485.00 is dismissed.

Description Landlord Tenant Compensation $6,100.00 Exemplary damages for Ss 42B and 54 $1,500.00 Filing fee reimbursement $27.00 Total award $7,627.00 Total payable by Landlord to Tenant $7,627.00

Reasons:

1. Both parties attended the hearing, with the tenants’ lawyer.

2. On 11/9/2024 the tenant filed an application for compensation by way of a refund of rent of $43,585.00 and exemplary damages for breach of quiet enjoyment, failure to allow minor changes to a door, failure to maintain, breach of [COMPANY] heating and ventilation standards and retaliatory notice.

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3. The parties attended a case conference by video link on 6/12/2024.

4. The tenancy was originally for a fixed term from 1/11/2022 to 14/10/2023 when it rolled over to a periodic tenancy.

5. The weekly rental was $900.00.

6. After the landlord gave notice, the tenancy ended on 16/10/2024.

Did the landlord harass the tenant?

7. The tenant submitted that throughout their tenancy their quiet enjoyment of the premises was continuously interrupted by tradespeople attending the premises to undertake work they believed should have been done before their tenancy began.

8. In particular, the tenant was unhappy with the noise caused by the dehumidifier required to dry out the bathroom for three days after the failure of the sealing in the ensuite shower led to leaks.

9. Further the tenant suggested that the correspondence about and issuing of a 14 day notice on 18/5/2023 regarding removing photographs taped to walls was a form of harassment.

10. In response, the landlord believed it undertook all maintenance issues raised by the tenant in a timely manner and gave 24 hours notice for all contractor visits.

11. Further the landlord considered issuing the 14 day notice was a way of enabling an inspection to make sure the problem with the tape had been rectified.

12. A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

13. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

14. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

15. I find the evidence does not establish that the landlord has committed an unlawful act.

16. Although the tenant had to put up with numerous visits by tradespeople these were mainly in response to issues raised by them with the landlord.

17. Moreover, the 14 day notice issued by the landlord was in response to a routine property inspection undertaken on 16/5/2023 in relation to what the landlord felt was a breach.

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18. I am not persuaded that the behaviour of the landlord was in any way intended to harass the tenant.

19. The claim for exemplary damages for breach of quiet enjoyment fails.

Did the landlord unreasonably withhold consent to a minor alteration?

20. [NAME] and [NAME] claims the landlord withheld consent to their written request to install a doorknob with a latch on the front door to keep it closed when not locked.

21. The tenant believed the alteration was only a minor change and would make a significant difference to the way they were able to use the premises because it would remove the need to always deadbolt the door.

22. In support of the claim the tenant provided a video of the front door opening in a light breeze.

23. On the other hand, the landlord submitted that the owner declined the request.

24. The landlord had the door inspected by two different tradespeople who confirmed “the door was in good working order with an appropriate handle and locking mechanism in place”.

25. Further the landlord considered that there was alternative door access to the front and rear of the property.

26. Without limiting section 42A(1) it is unreasonable for a landlord to withhold consent to a minor change. See section s 42B Residential Tenancies Act 1986.

27. 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 42B(1) and Schedule 1A Residential Tenancies Act 1986.

28. I find the landlord has committed an unlawful act by unreasonably withholding consent to the installation of a doorknob and latch.

29. The tenants’ evidence has persuaded me that the suggested alteration was only minor and necessary because the only way to make sure the door stayed closed was to keep it on deadbolt. This meant using a key to unlock the door, a somewhat dangerous practice should an emergency arise.

Did the landlord fail to maintain the premises or comply with [COMPANY]?

30. The tenant claims that the landlord has breached their obligations by failing to provide an ensuite shower that didn’t leak, a qualifying heat pump and premises free of draughts.

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31. The tenants believed they were deliberately misled by the landlord and the [COMPANY] report dated 1/11/2022 about the state of the premises for which they paid a significant weekly rental.

32. The tenants submitted that the report incorrectly took into account the wood burner when certifying compliance as 16.9kw combined for the main living area, despite the fact that the tenancy agreement specifically excluded the use of the wood burner because it had no permit and was to be replaced.

33. This meant that the heat pump, which was installed in 2022 only had a capacity of 6.9kw, which was below the required 7.73kw for the area.

34. Both parties confirmed that it was not until 1/9/2023, six months after the tenant complained to the landlord that a new wood burner was installed.

35. In addition, the tenant submitted that, despite the report, the premises were not compliant with respect to draught stopping.

36. The tenants provided video evidence of blinds and “plastic walls” they installed in the dining room moving due to draughts.

37. Further the tenant suggested that their electricity accounts were well above average for the time they were in the premises and the fact that the front door could only be closed while locked did not help with keeping out draughts.

38. Also, the tenant highlighted the amount of duct taping that the landlord and tradespeople had undertaken to stop draughts in the sunroom, windows and around chimney flues.

39. The tenant pointed out that the cause of the leak in the ensuite shower was due to it having been improperly installed.

40. For context the landlord submitted that the property was a 1970s large two storeyed, four bedroomed, two bathroom property with single glazed windows which had been the owner’s home for two decades and was situated at the top of a very windy hill.

41. While accepting that the heating did not meet the requirements the landlord suggested this was because they mistakenly believed the heat pump had been installed prior to 2019 when the requirement was 6.184kw.

42. The landlord submitted that there was no intent to mislead the tenant with the compliant [COMPANY] report.

43. As a result of the information from tradespeople, the landlord believed that the front door was fit for purpose.

44. In addition, while acknowledging that the property was situated in a very windy area and frequent duct taping was necessary, the landlord relied on the [COMPANY] report that the property was compliant in relation to draughts with no gaps or cracks larger than 3mm.

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45. Further the landlord submitted that once they became aware of the issue with the ensuite shower this was rectified within 10 working days.

46. Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.

47. Section 45(1)(bb) requires compliance with the Residential Tenancies ([COMPANY]) Regulations 2019 (HHS).

48. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

49. Compliance dates for the HHS vary depending on the tenancy:

a. 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.

b. All boarding houses must comply by 1 July 2021.

c. All houses rented by [NAME] and registered Community Housing Providers must comply by 1 July 2024.

50. 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.

51. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.

52. As the tenancy began on 1/11/2022 the compliance date would have been 28/2/2023.

53. With respect to the ensuite shower the evidence does not support that this was due to any failure on the part of the landlord and once they were made aware of the issue repairs were undertaken in a reasonable timeframe.

54. The claim for exemplary damages for failure to provide and maintain the ensuite shower fails.

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55. However, I find the landlord has committed unlawful acts by not having a qualifying heater in the lounge room and not having all gaps and chimney flues sealed.

56. The landlord did not dispute that the heater was not compliant.

57. In determining whether a gap or hole is unreasonable the legislation does not allow the age and condition of the premises to be taken into account.

58. The fact that the landlord initially taped gaps after the tenant complained, then had to send a [NAME] to undertake further sealing, and the tenant installed “plastic walls” supports that the premises were significantly draughty.

Was the notice to terminate the tenancy valid?

59. On 14/8/2024, the landlord gave the tenant 63 days notice ending the tenancy on 16/10/2024.

60. The tenant claims the notice is retaliatory because it was received two weeks after significant correspondence between the parties about the state of the premises and the tenants’ intention to file a claim with the Tribunal.

61. In response the landlord submitted that the owner wished to return to the premises as her principal place of residence after a two year work commitment in another City.

62. Under section 51(1)(a) a landlord may terminate a periodic tenancy by giving at least 63 days notice if the owner requires the premises within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.

63. I find the notice of 14/8/2024 was not valid.

64. The notice period was only for 62 days, which is 1 day less than the legislative minimum. This is because the date of the notice cannot be counted as 1 day when calculating the amount of notice.

Was the notice retaliatory?

65. For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.

66. Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

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67. What is at issue is whether the notice was of any effect because in giving the notice the landlord was motivated either wholly or in part by the exercise by the tenant of any right, power, authority, or remedy conferred by the tenancy agreement or Act.

68. There are four issues to consider:

a. Does the termination notice comply with s 51 RTA?

b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances.

c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord?

d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?

69. As mentioned above the notice does not comply with section 51.

70. The application by the tenant was made on 11/9/2024, 28 days after the notice to terminate was issued, so was therefore just in time.

71. The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to … to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

72. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.

73. His Honour Judge Ongley found in [NAME] v [NAME] DC Porirua M.A. 244/88 3 November 1988 that a notice was not retaliatory if it was given for genuine and fair reasons.

74. I find the evidence of the landlord does not support that the notice terminating the tenancy was given for fair and genuine reasons but was retaliatory.

75. Although the landlord believed the owner had returned to the premises within the 90 days he was unable to confirm when and if she had done so.

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76. Rather, the evidence supports that in giving the notice to end the tenancy, the landlord was at least partly motivated by the tenant exercising their right to raise issues about the state of the premises.

77. The history of the tenant raising issues about the state of the premises and the very short space of time between the correspondence of 18 to 23 July 2024 and the landlord issuing the notice to terminate raises a strong inference about the intent of the landlord.

78. I find the notice was retaliatory and the landlord has committed an unlawful act.

Should compensation and or exemplary damages be awarded?

79. As I have found the landlord committed unlawful acts by unreasonably withholding consent, breaching [COMPANY] standards, and issuing a retaliatory notice I must consider the issue of exemplary damages.

80. 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.

81. Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v [COMPANY] (HC CIV 2010-412-134).

82. In making an award of exemplary damages I need to consider the four matters set out in section 109(3).

83. First, I need to consider the intent of the landlord for the unlawful acts of unreasonably withholding consent and breaching [COMPANY] standards.

84. Pursuant to section 109(3A) intent is not required for retaliatory notice.

85. For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.

86. That decision, which was a case about the failure to supply [COMPANY] documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”

87. In regard to the breach of [COMPANY] standards for the heat pump, I consider the landlord did not intentionally commit an unlawful act, but rather did so mistakenly due to his belief about when the heat pump was installed.

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88. Nor do I consider intent can be inferred for the draught stopping standard because of the [COMPANY] compliance report which the landlord was, at least initially entitled to rely on.

89. As the draught stopping issue arose at the beginning of the tenancy, I am also mindful of section 109(2)(b) which provides that a tenant may not apply for exemplary damages 12 months after the date of commission of the unlawful act.

90. I consider the situation is different with withholding consent for the minor alterations because the evidence is clear the landlord refused consent on the instructions of the owner.

91. An inference can be drawn that the reason for the refusal was due to aesthetics, with the owner not wanting a doorknob and latch installed on the front door.

92. There is no evidence that consideration was given to the minor nature of the alterations or that the tenant, under section 42B(4) would be required to return the door to a condition that was substantially the same as before any change was made.

93. The effect on the tenant was significant, having a continuously opening front door unless the dead bolt was engaged.

94. While such an arrangement may be acceptable for an owner occupied property the fact remains that the premises were rented and subject to the provisions of the Residential Tenancies Act 1986, which allows minor alterations in certain circumstances.

95. While the effect on the tenant of receiving the retaliatory notice may not have been significant because the evidence supports that by August 2024, they were unhappy with the difficulties they had experienced and likely wanted to move, they should not have been penalised for bringing issues to the notice of the landlord.

96. The renting of premises is a business. Properties, irrespective of whether formerly occupied by [NAME] who are no longer occupiers, need to comply with the legislation.

97. Tenants have rights and landlords obligations, both of which should not be ignored during the term of the tenancy.

98. I have awarded what I consider reasonable combined exemplary damages for the breaches of sections 42B and 54 at the lower end of the scale.

99. Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. The Tribunal must consider the substantial merits and justice of the case without being bound to give effect to the strict legal rights or obligations, or to legal forms and technicalities.

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100. Although I have not awarded exemplary damages for breaches of [COMPANY] standards, I consider an award of compensation is reasonable in the circumstances because the tenant has had to put up with and compromise on several significant issues during the term of the tenancy, especially the front door, ensuite bathroom and many draughts.

101. I have awarded part of the rent for the 10 days the tenant was without an ensuite, and their electricity was used for the dehumidifier, at $100.00 per day, totalling $1,000.00.

102. In addition, I have awarded compensation at the equivalent of a rent reduction of $50.00 per week for the 102 weeks of the tenancy to compensate the tenant for the issues experienced during the term and the stress and inconvenience this has caused them culminating in an application to the Tribunal.

103. As the tenant has substantially succeeded with the claim, I have awarded the filing fee.

104. The tenant did not ask for suppression.

J Wilson

13 February 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: