Tenant Awarded Rent Arrears and Damages

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[2025] NZTT 5158754, 5166612

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] $1,080.00 immediately, calculated as shown in table below.

Description Landlord Tenant Rent arrears to 15 February 2025 $1,180.00 General damages: Leak in bedroom $100.00 Exemplary damages: HHS Extractor fan and heat pump

$800.00

Exemplary damages: Not lodging bond Refund bond held by landlord

$350.00 $1,180.00

Rubbish removal $20.00 Repairs: walls $150.00 Total award $1,350.00 $2,430.00 Net award $1,080.00 Total payable by Landlord to Tenant $1,080.00

Reasons:

1. This is a cross-application. Both parties attended the hearing.

2. The landlord [NAME], has applied for rent arrears, compensation, damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

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3. The tenants [NAME], have applied for compensation and exemplary damages where appropriate, for leaks in their home, breaches of the healthy homes standards, breach of their quiet enjoyment, failure by the landlord to lodge their bond, refund of their bond and reimbursement of the filing fee.

The tenancy agreement

4. The tenants signed an agreement for a one-year fixed-term tenancy to start on 23 June 2023. On 9 July 2024 they signed a new fixed-term tenancy agreement to end on 9 July 2025.

5. The second tenancy agreement they signed, the renewal, was a pro forma agreement for a boarding house. The tenants believed at the beginning of the hearing that their agreement must therefore be a boarding arrangement. However this is not the case.

6. When deciding on the nature of a tenancy agreement, the Tribunal looks at all factors and makes a finding on the facts of the case.

7. In this case, the tenants lived in the same building as the landlord, but there was complete separation of the premises except for a door in one of the tenants’ bedrooms that went into the landlord’s house, and a door in the tenants’ hallway that also went into the landlord’s house. These doors were only used a handful of times by either party across the entirety of the tenancy and never without notice and consent from the other party.

8. Each premises had its own kitchen, bathroom and laundry and its own entrance. These were never used by the other party for access to their own premises.

9. I determine that in function, the agreement was a residential tenancy agreement and the tenancy is subject to the Residential Tenancy Act. I note that the landlord also holds this view, notwithstanding that the agreement was written up on an incorrect form.

The landlord’s claims

How much is owed for rent?

10. Towards the end of 2024 the personal circumstances of the tenants were such that they needed to exit the tenancy agreement before the fixed-term had expired. They gave notice to the landlord and found a suitable replacement tenant. They then moved out on 31 January 2025 and stopped paying rent from this date. The new tenants moved in on 16 February 2025 and started paying rent from this date. The landlord is seeking rent arrears of $1,180.00 to cover the two-week period between tenancies.

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11. Under the Residential Tenancies Act, 1986 (the “RTA”) a landlord who consents to an assignment of the lease (see section 43B) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment. See section 44A.

12. Because of this, I determine the landlord is entitled to recover from the tenant the two weeks rent for the period between the tenancies and I order payment of the rent arrears.

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

13. 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) RTA.

14. The landlord provided photographs of the premises that she says shows the tenant did not leave the premises reasonably clean and tidy and an invoice for cleaning for $207.00.

15. The tenant provided a three-minute video that they say shows they did leave the premises reasonably clean and tidy.

16. Although the photographs and the video may both show the premises exactly as they were left, the difference between the two is startling. The tenants’ video shows the premises to be extremely clean, particularly in the kitchen. By contrast, the landlord’s photographs show fittings in the bathroom that appear to have not been cleaned very well at all.

17. When I consider the photographs and the video, I am persuaded that the premises were left reasonably clean and tidy. That is not to say that the whole premises did not need a further clean. A landlord may expect to conduct a deep clean between tenancies, but this standard is not the measure for how a premises will be returned at the end of the tenancy. In my view however, the video provided by the tenants shows premises that overall is above a reasonably clean and tidy standard.

18. The landlord’s claim for cleaning is not proved.

19. At the end of the tenancy, the tenant left three large bags of rubbish. The tenant says the landlord told them she would take care of the rubbish.

20. The landlord provided an invoice for $240.00 for dumping 320 kilograms of rubbish, which included the tenants’ three bags. The landlord stated that the bags weighed at least 10 kilograms each. The landlord is seeking $20.00 compensation for disposing of the rubbish.

21. I accept both of the parties’ evidence on this claim. However I do not draw the same conclusion that the tenants drew from the landlord’s statement that she

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would take care of the rubbish, which is that it would be at no cost to the tenant. I find the landlord’s claim for disposal of the rubbish proved.

22. The landlord claims the tenants damaged a mattress provided to them for the duration of the tenancy. The landlord provided a photograph that shows a hole that is approximately 20mm round in the mattress, and some of the stuffing having pulled out through the hole.

23. The tenants deny knowing of the hole or doing any damage to the mattress. They provided a video that they took of the mattress that they say shows it to be in perfect condition.

24. Although the tenants’ video does not show the whole mattress, I have considered both parties evidence on this claim and I prefer the tenants’ evidence. The hole is unusual and I do not consider that it is the result of careless damage. Nor do I believe the tenants have deliberately damaged the landlord’s property.

25. This claim is not proved.

Is the tenant responsible for the damage to the premises?

26. 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.

27. The landlord produced photographs that show one dent in the wall approximately 80mm – 100mm round, and one area on a wall about the same size where the paint has been pulled off the wall. The landlord is seeking $200.00 for this damage.

28. The tenants stated they did not know of the damage and it may have occurred when the property was leaking.

29. The damage is more than fair wear and tear. It is damage that regularly occurs in the course of a tenancy. The tenant has not disproved liability for the damage.

30. I consider the damage to be careless, but minimal. I have reduced the award having taken into account betterment and depreciation. In calculating depreciation, I have taken into account the age and condition of the premises at the start of the tenancy and its likely useful lifespan.

31. The amount ordered is proved.

The tenant’s claims

Failure to lodge the bond

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32. The tenants claim the landlord did not lodge the bond with the Bond Centre within the required time and did not provide them with a receipt for the bond.

33. The landlord accepts she did not lodge the bond with the Bond Centre at all during the tenancy and did not provide the tenants with a receipt.

34. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

35. 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 19(2) and Schedule 1A Residential Tenancies Act 1986.

36. The landlord stated she did not realise she had to lodge the bond with the Bond Centre as this was her first experience acting as a landlord.

37. I find the landlord has committed an unlawful act.

38. 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) Residential Tenancies Act 1986.

39. Bond money is money that belongs to the tenants and is held by the Bond Centre as security for the tenancy. It is not money that a landlord is entitled to use for any other purpose. The effect of a landlord retaining and controlling the bond serves to disempower the tenant. The public and all landlords and tenants have a right to expect that all parties will comply with the RTA in its entirety and not just the parts of it that they know about. As being a landlord is a commercial enterprise, a landlord is responsible for getting professional advice and ensuring that they strictly comply with the law.

40. Exemplary damages are ordered.

Breach of Healthy Homes Standards

41. The landlord produced a Healthy Homes Standards (“HHS”) Report dated 24 January 2025. This date is seven days before the tenancy ended. The report describes the property by street address in its entirety; there is no distinction between the rented unit and the main premises. This means the tenants’ rented unit is not assessed as a discrete dwelling with reference to the HHS.

42. [NAME] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy

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Homes Standards) 2019 (HHS). [NAME] consider that the landlord has failed to comply with the HHS heating standard.

43. 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.

44. 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/

45. The HHS provides exemptions in specific circumstances.

46. 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).

47. The landlord produced a plan of the premises which show the living area in these premises as a converted garage.

48. The tenants stated that there was no heat pump or qualifying heater in their main living area.

49. The landlord stated that the whole house, that is both premises together, were heated by a central heating unit. Both parties agreed that the landlord had complete control of this unit.

50. The landlord stated that she heated the tenants’ unit to 25 degrees Celsius during winter. This is not entirely consistent with other information that the landlord provided to the Tribunal, including a handwritten addendum to the tenancy agreement that states the tenants’ rent includes power and water and wifi, and if the tenants wish to use a heater they must pay an extra $30.00 per week. Why would a heater be necessary if the premises was adequately heated by a central heating system? The landlord also stated that the tenants told her at the beginning of the tenancy that they did not mind the cold and did not need a heater.

51. The tenants stated that the central heating unit never provided any heat to their unit during the tenancy.

52. Having heard from each of the parties, I prefer the tenants’ evidence that the landlord did not heat the tenants’ unit with the central heating unit.

53. I determine that providing a central heating unit which the tenants have no control over does not comply with the Healthy Homes Regulations.

54. I find [NAME] committed an unlawful act.

55. Tenants and the public have an interest in rented premises being adequately heated as a matter of right and not as an added extra. To this end a landlord must provide a working, compliant form of heating for the main living area of a rented

https://www.tenancy.govt.nz/heating-tool/

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premises. It is easy to draw a conclusion from the information provided, that the landlord sees heating as an extra. However I am not aware of any other similar breaches by the landlord. Considering these factors I award exemplary damages against the landlord.

56. [NAME] also consider that the landlord has failed to comply with the HHS ventilation standard.

57. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

58. The HHS provides exemptions in specific circumstances.

59. 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).

60. The tenants stated that the extractor fan in their bathroom never worked. The landlord disagreed with this.

61. The HHS report dated 24 January 2025 simply says “Home is fitted with a bathroom extract venting outside.” This is an inadequate assessment of bathroom extraction regarding this property; no particular bathroom is identified, and there is more than one, and no detailed assessment of the extraction units is provided.

62. The tenants also stated that between them leaving to go overseas at the end of 2024 and returning in early 2025, some repairs were undertaken, and this included the extractor fan.

63. The landlord accepted that repairs were undertaken but denied they included the extractor fan.

64. Having heard both parties on this claim I am persuaded that the extractor fan in the tenants’ bathroom was not working for at least some of, and probably most of the tenancy.

65. I find [NAME] committed an unlawful act and I make an award of exemplary damages.

Failure to maintain

66. [NAME] claims that the landlord breached her obligations under section 45 of the Residential Tenancies Act 1986.

67. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.

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68. 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.

69. The tenants claim that on two occasions there were significant leaks into their unit.

70. The first occasion involved a leak from the water pipes in the wall of the kitchen in January 2024. The tenants say that because of this leak they were unable to use water from the kitchen for a week. This meant they had to take water for washing, drinking and cooking from the bathroom, which they considered to be unhygienic. Even though the tenants admitted they know the source of water for the kitchen and the bathroom is the same, to use water from the bathroom for consumption is something they found distasteful. They are entitled to their views.

71. The tenants stated that whenever work was needed in their unit, the landlord would bring many people over who would watch the work being done. The tenants provided a photograph which shows an example of three or four people not involved in the work standing watching the work being done.

72. The tenants claim that because they were without a fully functional kitchen for a week, they should only have had to pay half rent for that week.

73. The landlord stated that she responded straight away to the leak by calling a plumber and addressing the problem. Although it was unfortunate that the tenants couldn’t fully use the kitchen for a week, there was no way around this. She said that she provided the tenants with 24 500ml bottles of water. The tenants say it wasn’t that amount of water, but they do accept some was supplied.

74. Breakdowns such as this leak happen occasionally at any property and are unavoidable. In this case, there is no suggestion that the landlord was negligent or caused the leak, and I find she acted quickly and conscientiously in addressing the problem. I do not find this was an example of the landlord failing to maintain the premises. I also find that the landlord made some effort to compensate the tenants for their inconvenience. This tells me that at the time the parties were acting in good faith towards each other, and if it had occurred to the tenants that more was required, they would probably have asked for it at the time. Because they did not I am not inclined to order compensation for their partial loss of utility for this relatively short period of time.

75. On returning from overseas in January 2025 the tenants walked into their bedroom and found that the carpet in their bedroom had been saturated by a leak coming through the ceiling. The tenants stated that for two weeks after this they were unable to sleep in their bed. The best arrangement for this time meant that [NAME] had to sleep on the floor with her son for two weeks. [NAME] stated that 5 or 6 items of her new traditional clothing were damaged and have smelled of mustiness ever since. [NAME] was unable to provide any corroborating

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evidence such as photographs or invoices for purchase or cleaning in support of her claim for damaged clothing.

76. The landlord stated that she responded straight away by calling a plumber and fixing the problem. She stated that straight away she began drying the carpets and that the carpets were dry just six days later. The landlord produced a screenshot of a text message to [NAME] six days after the leak in which she says that the floor is dry and the bed can be moved back into the bedroom.

77. [NAME] disputes that after six days the carpet was dry enough to sleep in the room again.

78. I accept that dry enough to walk on and dry enough to sleep on may be different standards.

79. In the circumstances, for similar reasons to the first leak, I do not find that the landlord committed an unlawful act: Accidents happen. The landlord acted promptly and conscientiously in addressing the leak.

80. However I do find that no compensation for loss of utility was made, and I determine that in the circumstances a nominal reduction in rent of $100.00 covering the whole period (six days or up to 14 days) is a reasonable amount. This is ordered as general damages.

Breach of quiet enjoyment

81. [NAME] claims the landlord has harassed them.

82. 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.

83. 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.

84. 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.

85. The tenants claim that the onlookers who attended at the time of the first leak were a breach a breach of their quiet enjoyment. They also consider that the workers and the landlord who came into their unit without taking off their shoes were breaches of their quiet enjoyment.

86. I consider both of these events to be breaches of the tenants’ quiet enjoyment. In the case of the landlord not taking off her shoes, I expect this to be an example of cultural insensitivity rather than an intentional act.

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87. However I am not persuaded that the breaches occurred frequently enough or were severe enough to come anywhere close to being considered harassment. I do not find this claim proved.

The filing fee

88. Because both parties have been partially successful with their claims I make no award for reimbursement of the filing fee.

[NAME]

25 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: