Tenant Partially Successful in Claim for Compensation Against Landlord

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[2024] NZTT 4931949

TENANCY TRIBUNAL - Invercargill | Waihōpai

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] $1,418.55 immediately, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $1,720.00 (3644007-005) to [NAME] immediately.

Description Landlord Tenant Rent arrears. Failing to maintain the lawns. Electricity usage Failing to comply with the courtesy clause.

$4,238.55 $100.00 $500.00 $500.00

Total award $3,138.55 Bond $1,720.00 Total payable by Tenant to Landlord $1,418.55

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Reasons:

1. [NAME] attended the hearing in person as did [NAME] whom also had with him his partner as a support person. At the time of the tenancy [NAME] had a [COMPANY] whom took care of the tenancy for him.

2. The parties entered into a tenancy agreement that commenced on the 12 June 2023 and came to an end on the 13th September 2024.

3. [NAME] bought an application to the Tribunal at a time when the tenancy was still current. The claim is that the landlord, [NAME] has committed a number of breaches of the Residential Tenancies Act 1986 (RTA).

4. [NAME] claims he had wished to file a counter claim. After some discussion it appeared to be largely a response, however, he raised the issue of rent arrears and carpet cleaning. I had the consent of all parties to deal with those two issues today rather than delay matters.

How much is owed for rent?

5. [NAME] had issued a ninety day notice to terminate the tenancy based on the need for his brother to have accommodation. This saw the tenancy ending on the 22 October 2024. [NAME] claim that the notice was retaliatory, and they gave notice of the 9th September 2024 to end the tenancy on the 13th September.

6. The tenants accepted that given issues in the relationship between the parties that they stopped making rental payments on 31 July 2024.

7. Due to my decision regarding the issue of the notice not being retaliatory that I shall get to latter in the decision, the rent is owed from 31 July 2024 until 22 October, a total of 9 weeks, 6 days, a total of $4,238.55.

Are the tenants liable for the carpets being cleaned?

8. 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. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

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9. [NAME] claimed for carpet cleaning costs given the tenant had a dog. Having considered the evidence in support of this claim I do not accept that the claim is proven.

10. There was no agreement that the dog was allowed on the condition that the carpets were cleaned as claimed by [NAME]. There is no evidence of stains or the need to have the carpets professionally cleaned.

11. There was a question around the [NAME] paying from their bond for the carpets to be cleaned and this was never completed as it was up to [NAME] to arrange with his new tenants, [NAME], the right time to get them done and it was never carried out.

12. Given the above the claim is dismissed.

Breaches of the Landlords responsibilities under Section 45 of the Residential Tenancies Act 1986.

13. [NAME] claim that [NAME] has breached a number of his obligations under section 45 of the Residential Tenancies Act 1986.

14. They claim that he failed to maintain a number of areas in the home. They also claim that he failed to comply with [COMPANY] and failed to comply with the obligation to the production of documents.

15. 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.

16. In the decision of MBIE v Hillis Shearing Limited (20-24) NZDC 27583, Judge M S Williams confirms two [NAME] judgement (Gardiner CIV 2014- 085-13 and [NAME] (2022) NZDC 23881) that concluded that the Tribunal can only make one order of exemplary damages for breaches of the landlords’ obligations under Section 45 of the Act.

Failing to maintain

17. Under section 45(1)(b), a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available.

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18. 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).

19. The tenancy commenced on the 12 June 2023 and ended on the 13th September 2024. The tenant claims that the landlord failed to maintain the carpets, fireplace, leaking roof and windowsills. I have considered the length of the tenancy and the condition of the property at the commencement and the details for the request to maintain and considered if the landlord simply ignored such requests.

20. Having considered all of the evidence and on the balance of probabilities, I am not satisfied that this has been proven, On the evidence, the landlord has not failed to ‘maintain’ the upkeep of what was an old property. When consideration is given to the age of the property and its condition at the commencement of the tenancy, as I am required to do, I do not find that case for failing to maintain has been proven.

21. However, in relation to failing to maintain the lawns this is proven. [NAME] was required to mow the lawns under the tenancy agreement and failed to do so and on the evidence of the photos submitted I accept that this has not occurred.

22. In relation to the roof, there is insufficient evidence to say that the landlord was notified and simply did nothing. Therefore, this part of the claim there is insufficient evidence to prove the case on the balance of probabilities.

Did the landlord fail to comply with the [COMPANY]?

23. Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies ([COMPANY]) 2019 ([NAME]).

24. [NAME] considers that the landlord has failed to comply with the [NAME] heating standard.

25. Compliance dates for the [NAME] 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.

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iii. All private rentals must comply by 1 July 2025.

26. 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 [NAME].

27. 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/

28. The [NAME] does provide exemptions in specific circumstances.

29. A [COMPANY] assessment was conducted on 2 March 2023 and completed on 17 May 2024, a significant delay and it could be said that that was due to work having to be completed for the positive report.

30. The tenancy started on 12 June 2023, there is no evidence that there was an issue with the heating standards that required remedy within the 90 days at that time.

31. The fireplace is referenced in the assessment report date 17 May 2024 this section of the [COMPANY] section was complied with. There is no indication in that report that further heating was required nor is there evidence that that work had been carried out on the fireplace or further heating installed between 12 June 2023 and 17 May 2024 to have resulted in a positive report and to support the claim that it would have failed before May 2024.

32. In this case having considered all of the evidence on the balance of probabilities I am not satisfied that this part of the claim is proven.

Did the Landlord fail to comply with the [COMPANY] draught stopping standards?

33. [NAME] claims 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 ([COMPANY]) 2019 ([NAME]). [NAME] considers that the landlord has failed to comply with the [NAME] draught stopping standard.

34. 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.

35. The [NAME] does provide exemptions in specific circumstances.

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

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36. 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).

37. As stated above there was a report commissioned dated 17 May 2024 that shows the property having passed the [NAME] assessment.

38. If there were issues the landlord had 120 days to remedy from the start of the tenancy. There is insufficient evidence that at that time that the house failed in relation to the standards.

39. Again, on the evidence submitted I cannot find that in this case there is sufficient evidence to say the issues the tenant’s raised was sufficient to state there has been a breach.

Did the landlord fail to provide information relating to [COMPANY] to the tenant?

40. Section 45 (1AC) of the Act provides that a landlord must, if requested by the tenant, supply the information described in Section 123A(1)(e) relating to [COMPANY], within 21 days after receiving the request.

41. Section 123A(1)(e) of the Act provides ‘the records or other documents that relate to the landlord’s compliance with the [COMPANY] and that are prescribed in section 138B(5).

42. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00.

43. The tenancy agreement was signed on 25 [NAME] claims that there was no [COMPANY] attached. The standard insulation and [COMPANY] statement was attached on the information to the agreeemnt before me.

44. I am advised that a request was made on the 5th of June 2024 and an assessment certificate was provided. This is dated 17 May 2024.

45. A report was completed on the 17th May 2024. On the evidence before me the requirements have been satisfied. There appears to be some confusion about what is and was provided in the 21 day time frame.

46. In any event, I am not satisfied that there was a breach and if there was that the exemplary damages arise from such a breach should be awarded under these circumstances.

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Did the landlord breach the tenant’s reasonable peace, comfort, or privacy of the tenant?

47. [NAME] claims that [NAME] has harassed them. The word harass is in the Act and leads to the claim of a breach of reasonable peace.

48. Section 38(2) of the Act provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See

49. 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.

50. 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.

51. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.

52. When [NAME] was originally shown through the property, she was advised that the owner visited the property ‘occasionally’ and pointed out the area of the house where he stayed. The evidence is that he came approximately four times a month and they would never have taken the property if it was that many times.

53. [NAME]’s evidence is that the portion of the house in which he stayed was not accessible to the remainder of the four bedroom home. It was fully self- contained.`

54. He would visit the property to stay on occasion and collect items, for renovations and the like. The visits were not necessarily to do maintenance on the tenants property.

55. The tenancy agreement provides a “Courtesy Notice” clause. It states:

“The occupant of the adjoining flat will communicate his intentions to visit the property via sms, to the tenants 24 hours prior to his presence on the property as agreed between the parties”

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56. Regardless of the fact that this was his own accommodation, there was clearly the clause inserted to show as a matter of courtesy when the landlord would be at the property. On the evidence I have been provided I am not satisfied that the condition of the agreement has been adhered to. Whilst arguably this clause was not needed because it was the landlord’s own property this tenancy was entered into on this basis., This was not given and respected. There were times notice was not given.

57. It is difficult when the landlord has occupation of an adjoining residence such as this and is able to come and go and can be seen as a breach, however in this case I am going to make an award against the landlord given he failed to notify as per the courtesy clause.

Was the tenancy an illegal tenancy?

58. [NAME] claims that they were living in an ‘unlawful dwelling’.

59. They believe it was two dwellings, [NAME]’s and theirs, thus two titles, two rates and separate services should apply. A second argument for the property being unlawful was that they claim that they could not identify any consents for work that the landlord had done on the property.

60. In relation to the question, should the property have two titles and be separate.

61. The higher courts have confirmed that a premises may be part of a larger premises.

62. Kahi v Lucas HC Auckland HC81/96, 23 September 1996. Justice Anderson concluded:

• that the definition of “premises” in section 2 of the Act is inclusive and not exhaustive.

• It is perfectly plain that premises may itself contain premises, hence the definition in the Shorter Oxford Dictionary referring to “part of a building”.

Harding v Schellevis & Ors [2021] NZHC 1265. Justice Walker determined that:

a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises;

b. residential premises can include part of any premises used or intended for occupation as a place of residence;

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c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions.

d. In this case the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.

63. On this basis I ma not satisfied that the premises is unlawful on the basis of two premises.

64. In relation to the claim that the building was possibly unlawful due to the lack of appropriate consents, Section 78(A) of the Residential Tenancies Act states:

78AOrders of Tribunal relating to unlawful residential premises (1) This section applies in any matter where the Tribunal, on application by a party or otherwise on the evidence before the Tribunal in respect of any claim within its jurisdiction, determines or declares that the premises are, or were at any material time, unlawful residential premises. (2) For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.

65. [NAME] (2022) NZDC 20805

“The purpose of s78A is to prevent landlords from offering premises which fail to meet the statutory and regulatory thresholds of safe and sanitary housing. However, a balance needs to be applied between premises which are safe and sanitary but unlawful because of a technical breach. Each case will need to be determined on its own merits because clearly there will be many instances where premises will be unlawful because they are not safe and sanitary”.

66. In considering the tenants claim and the firm belief that they formed, there is insufficient factual evidence to prove that the home was unlawful. There is no evidence that the property was not safe and sanitary, it may be that there was a technical breach of some kind however there is insufficient evidence to come to

https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95079#DLM95079 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95079#DLM95079 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95099#DLM95099 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3283909#DLM3283909 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3283910#DLM3283910

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the conclusion that an order should be made that this was an unlawful premises. Therefore, I must dismiss the claim.

Was the landlords notice retaliatory?

67. On 19 August 2024 [NAME] gave [NAME] a notice ending the tenancy on 22nd October 2024. The tenant claims the notice is retaliatory.

68. 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.

69. 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.

70. Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.

71. The claim is that the notice arrived at a time when there was a ‘barrage’ of text messages between the parties regarding issues over the power and other related issues.

72. [NAME] gave evidence regarding his family situation, that is a family member needs the property for accommodation. I accept this to have been the case and I do not therefore accept that the notice was retaliatory and therefore this part of the claim is dismissed. There is a question in relation to the notice to tenant actually provided, however this was not raised as an issue by [NAME] and I did not need to determine that issue.

Should the tenants be reimbursed for paying the landlords electricity?

73. Throughout the tenancy [NAME] were clearly paying for the power for the area that [NAME] resided.

74. The records do not make sense and clearly show an issue here. The difficultly is that it is difficult to quantify exactly the amount. However, on the evidence I am going to make an award for a contribution accordingly.

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75. Because both parties had issues with parts of the claim I am not prepared to award the filing fee for this case.

[NAME]

18 November 2024

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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: