Tenant Awarded Exemplary Damages for Faulty Smoke Alarm

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[2025] NZTT 5134690, 5140549

TENANCY TRIBUNAL AT HUTT VALLEY | TE TARAIPIUNARA RETIHANGA KI TE AWAKAIRANGI

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

[COMPANY]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] to pay [NAME] and [COMPANY] $1,662.95 from the bond, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $1,725.00 (5250449-013) immediately apportioned as follows:

[NAME], [COMPANY]: $1,662.95

[NAME]: $62.05

Description Landlord Tenant Exemplary damages $2,000.00 Carpet Cleaning $471.50 Cleaning $250.00 Removing fence $1,017.75 Carpet Cleaning: Reinstating lawn and garden work $1,896.70 Filing fee reimbursement $27.00 Total award $3,662.95 $2,000.00 Net award $1,662.95 Bond $1,662.95 $62.05

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Reasons:

1. Both parties attended the hearing.

2. The tenant has applied for compensation and exemplary damages for the alleged failure by the landlord to replace a defective smoke alarm and harassment. In addition, she seeks a market rent review of the last rent increase and refund of the bond.

3. The landlord has filed a cross application for compensation and refund of the bond following the end of the tenancy.

Background

4. This was a periodic tenancy commencing on 4 January 2021. The tenant occupied the premises with her children and was also permitted to have a dog. was also agreed that the tenant could erect facing at the property to enclose the yard for her dog, provided she removed it when the tenancy ended. The tenant gave notice to end the tenancy with effect on 8 December 2024. Rent was initially set at $575/week. Rent increased to $625 from January 2022; $650 from 16 January 2023; and $675 from 22 January 2024.

5. The tenancy was initially managed by the owner. LPM Property Management Limited was appointed to manage the tenancy from 25 September 2023.

Has the landlord breached their obligation to provide a working smoke alarm?

6. The tenant claims that the landlord has breached their obligations under section 45(1)(ba) RTA to comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI). A landlord must ensure that residential premises have qualifying smoke alarms as defined the SAI regulations which must be fully operational, and otherwise in full working order, with no faults, defects or damage. See SAI regulations 5-10.

7. 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 RTA.

8. During a regular inspection of the premises on 14 June 2024, the property manager noticed that the tenant had removed the smoke alarm in the hall. She advised that she had done this because it was beeping. The property manager issued a 14-day notice requiring the tenant to reinstate the alarm after she changed the battery. The tenant advised on 23 June that she had changed the battery, but the alarm continued to beep so she had taken it down again. She

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asked the landlord to organise a replacement. The landlord confirmed that they would do so.

9. The landlord provided evidence of a work order dated 24 June authorising their contractor, [NAME] ([NAME]), to install a new smoke alarm. However, the tenant says that she was not contacted by [NAME] from [NAME] to arrange the work until 13 September (almost 3 months later). Access was arranged for 20 September. The tenant made sure that her dog was not present, and the contractor had a key. However, the contractor did not install the alarm. In a text message exchange on 20 September the contractor, [NAME], advised the tenant at 10.18am that they were about 30 minutes away; At 18:21pm the tenant messaged the contractor that she noticed the alarm had not been installed and asked what happened; At 19:22pm the contractor replied “We couldn’t get in. Office will have to check why keys didn’t work.” The tenant was next contacted by a different employee from the same contracting company on 21 October with access arranged and the smoke alarm installed on 25 October.

10. The landlord provided a written statement from [NAME] at [NAME] to explain the installation delay. It states:

“Initially our contractor contacted the tenant to schedule the fitting, but the proposed time did not work for them. Subsequent attempts to reach the tenant went unanswered. Additionally, Suzana was unavailable due to illness and later, a foot injury. To ensure the work was completed promptly, the job was reassigned to another contractor, and the installation is now finished on 25 October.”

11. The landlord did not provide any evidence of text message, emails or other communications alleged between [NAME] and the tenant. The statement from [NAME] is vague as to exactly when contact was made. The tenant provided evidence of her communications from [NAME] in September and October 2024 as above and is adamant that she was not contacted outside of those messages. In the absence of any evidence to the contrary by the landlord, I accept the tenant’s evidence of the communications she received from the landlord’s contractor.

12. The landlord says that once they authorise a work order, their contractor is responsible to contact the tenant and arrange access for the work. They were relying on both the contractor and the tenant to advise if the work was not arranged or not done. The tenant says that she did not follow up on the alarm because she is a busy solo mother; she has ADHD; and it was “out of sight, out of mind.”

13. Given that smoke alarms are a critical fire safety measure required in all residential tenancies, it is imperative that landlords ensure that smoke alarms provided are in working order. When a tenant reports a defect, then the landlord is obliged to repair or replace the defective alarm as a matter of urgency. Failure to do so could have serious consequences in the event of a fire. In those circumstances, I consider that it is not reasonable for the landlord to sit back

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and assume a replacement smoke alarm has been installed unless they are told otherwise by the contractor or the tenant. I consider the landlord has a positive duty to check that the issue has been remedied. I would expect the landlord to monitor progress and diarise a date to check the work has been done, particularly when, as here, they had not been invoiced for the work.

14. In summary, the delay in installing a replacement smoke alarm is unreasonable and a breach of the landlord’s obligations. The initial three-month delay between reporting the problem on 23 [NAME] contacting the tenant on 13 September was totally unacceptable. The further one-month delay which occurred between 20 September and 25 October is also unacceptable.

15. By breaching their obligations, the landlord has committed an unlawful act.

16. 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) RTA.

17. I find that the matter of intention is proved. The landlord’s failure to take simple proactive steps to ensure that the work was done was deliberate and intentional. That is not to say that they intended to breach the act, but they intended to do whatever they did or did not do, which in this case was not checking that the smoke alarm was replaced in a reasonable timeframe. The effect of the unlawful act could have been serious had a fire occurred. It is a matter of public interest that landlords comply with their obligations, and especially obligations concerning health and safety.

18. Taking all factors into consideration, I award $2,000 exemplary damages which is 27% of the maximum amount that could be awarded. The award reflects the seriousness of the act but is at the lower end of the scale because the Tribunal is unaware of any prior breach of this nature by the landlord.

Should the rent be reduced?

19. The tenant says that the weekly rent increase from $650 to $675 with effect from 22 January 2024 exceeds market rent and she applies for an order reducing the rent. Initially, the landlord proposed, by letter dated 21 November 2023, a rent increase to $680 but later agreed to $675.

20. Section 25 RTA sets out the basis for a reduction of rent, the material parts of which are set out below:

25 Market rent (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a

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substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent……..

(4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date but being no earlier than the date of the application for the order and no later than 30 days after the date of the order.

21. In determining an application under s25 the Tribunal must be satisfied by evidence that the increased rent exceeds the market rent by a substantial amount. To reach that conclusion the Tribunal must first assess what the market rent is using the definition in section 25(3). That can only be done based on some evidence which the Tribunal accepts.

22. I heard evidence from both parties on this issue at the hearing and reached the conclusion that the tenant was unable to prove the market value let alone that the rent exceeded market value substantially.

23. Even if that finding is wrong, section 25(4) prohibits the Tribunal from backdating a rent reduction prior to the date of the application. The tenant’s application was dated 15 January 2025, after the tenancy ended on 8 December 2024. It follows that even if she was able to establish grounds for a rent reduction it cannot be applied to any rent payable before 15 January 2025. For that reason the claim is dismissed.

Has the landlord harassed the tenant?

24. 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) RTA. 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

25. 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.

26. The tenant claims that the landlord’s communications with her regarding the rent increase and their refusal to acknowledge her arguments as to why the rent should not be increased amount to bullying tactics and a form of harassment. She says that she felt powerless in that situation; she had no choice but to “roll over” and pay the increased rent; and that the exchange of emails was draining and distressing. She also argues that the landlord sending her rent arrears reminders for the increased portion of the rent was harassment even though she concedes that the arrears were owed.

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27. As discussed at the hearing, I have reviewed the landlord’s communications with the tenant about the rent increase and do not find that they amount to a breach of quiet enjoyment or harassment in her use of the premises. The communications are professional and contain relevant information in which the landlord expresses their views on the matter. While the landlord and tenant disagreed about the rent increase, a disagreement or differing views is not sufficient to establish a breach of quiet enjoyment claim. I also consider that the landlord was acting within its right to send rent arrears reminders. If the tenant believed the rent increase was wrong and exceeded market rent, her remedy was to bring an application under s25 at the time.

28. The claim for breach of quiet enjoyment/harassment is dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

29. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986 (RTA).

30. The tenant's obligation to leave the premises reasonably clean and reasonably tidy is not an absolute standard, and it does not mean that the premises will be immaculate, spotless, or commercially clean. It also does not mean that the premises will necessarily be ready for occupation by a new tenant, the owner or ready for sale. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined based on the subjective opinion of either the landlord or the tenant. Also, a tenant should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.

31. The landlord seeks the costs of cleaning the interior and carpet cleaning due to dog smell and hair on the carpet. They produced exit inspection photos to support their claim.

32. The tenant complained that the landlord did not give her a list of cleaning expectations before the tenancy ended and did not carry out an end of tenancy inspection with her. She says that had they done so, she could have addressed any outstanding issues. Some landlords do send tenants an end of tenancy cleaning guide and will often conduct an end of tenancy inspection with the tenants. However, they are not obliged to do so under the RTA, nor are they obliged to allow a tenant to return to the property once the tenancy has ended to rectify any issues.

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33. The tenant left most of the premises reasonably clean and tidy but there were some areas that required additional cleaning such as the oven door, the shower, bathroom vanity (even though the landlord decided to replace it later) and the heat pump filter. However, I have reduced the cleaning claim because I consider that some items claimed were not significant and would normally be what a landlord could expect to attend to after a tenancy of four years concluded.

34. In relation to the claim for carpet cleaning, I accept the landlord’s evidence that there was a dog smell on the carpets that needed to be deodorised; and two pink stains that were removed. The amount claimed is ordered.

35. The claim for exterior garden tidy work is considered with the claim for restoring the damaged lawn below.

Is the tenant responsible for the damage to the premises?

36. A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

37. Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

38. Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

39. Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

40. Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

Backyard damage

41. I am satisfied on the evidence that the backyard lawn was damaged during the tenancy by the tenant’s dog. There was a wide strip along the fence where the

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lawn was completely worn away. The landlord asked the tenant to restore the lawn to its original condition in May 2023. The tenant says she tried to reinstate the lawn in September 2023, but her efforts were unsuccessful. The lawn damage was still present at the end of the tenancy. The damage is more than fair wear and tear, and the tenant is liable it.

42. The invoice for the work is substantial because the contractor had to apply four loads of topsoil to the area which took significant time and labour. They then reseeded the lawn. The invoice also covers work to weed and tidy overgrown gardens, mow the lawn, and wash down the paths. I allow the claim for washing paths, disputed by the tenant, because I accept that they likely required washing after the contractor completed the gardening and lawn restoration work. I accept that the lawns were mowed at the end of the tenancy and the tenant is not liable for further mowing. For that reason, I have reduced the invoice by $115 plus GST which I consider is reasonable.

Fence erected by tenant

43. The tenant did not remove the fence she installed at the end of the tenancy as agreed with the landlord. She is liable to do so. The landlord gave her an opportunity after the tenancy ended to remove the fence, but she did not do it. The tenant says the landlord was unreasonable by requiring her to do it in three days which was not possible. However, as mentioned above, the landlord is not obliged to give a tenant any further time after the tenancy ends to rectify outstanding issues. The tenant also complains that the landlord did not specifically ask her to remove the fence after she gave notice to end the tenancy. However, I am not persuaded that this is a reasonable excuse and consider that the onus was on her to remove it as agreed with the owner.

44. The landlord has not removed the fence yet and the tenant suggested that he has no intention of doing so because she saw the property listed for rent stating that it was fenced. However, the owner assured me at the hearing that he has every intention of removing the fence and has delayed the work until an award is made and he has funds available. He has obtained a quote for the work from the contractors who conducted other maintenance work at the premises. I consider that the quote is reasonable for the work which will involve digging out the concreted fence posts and repairing the holes left in the lawn. The amount is proved.

45. The tenant applied for suppression of her name and identifying details. The Tribunal must grant suppression if the applicant substantially succeeds with the proceedings. The tenant has not substantially succeeded. Therefore, suppression is not granted. The landlord has mostly succeeded with their application and, therefore, I have awarded them reimbursement of the filing fee.

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[NAME]

27 March 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: