Tenant wins $4,877.00 in damages for bond and maintenance issues

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[2025] NZTT 5052008

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Unit/[ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] and [NAME] $4,877.00 immediately.

Description Tenant Bond Refund $3,600.00 Exemplary damages: Failure to lodge bond $600.00 Exemplary damages: Failure to provide Healthy Homes Statement

$250.00

Compensation: Failure to maintain $400.00 Filing fee reimbursement $27.00 Total award $4,877.00 Total payable by Landlord to Tenant $4,877.00

Reasons:

1. Both parties attended the hearing.

2. This tenancy began on 6 March 2024 and ended on 4 September 2024.

3. The tenant has filed claims with the Tribunal.

4. This hearing was adjourned from 24 January 2025.

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5. On 24 January 2025 the Adjudicator clarified the tenants’ claims as follows:

“3.a. Refund of the bond.

b. Failure on behalf of the landlord to lodge the bond.

c. Failure on behalf of the landlord to maintain the following items in a reasonable state of repair:

i. Rat infestation of the property

ii. Leaking roof over the outdoor patio

iii. Gaps in the windows and doors when closed

iv. Wet wall in one bedroom

v. House alarm continuously going off

d. Failure on behalf of the landlord to comply with the healthy homes standards in respect of the following:

i. Leaking roof over the outdoor patio

ii. Gaps in the windows and doors when closed

iii. Wet wall in one bedroom

4. The tenant seeks compensation and exemplary damages.”

6. The adjudicator recorded that:

“The landlord attended the hearing with many documents, none of which had been filed in advance of the hearing and served on the tenant.

If the landlord has a claim against the tenant, they must file a cross-application within 14 days of this order.

If the landlord does not want to file a cross-application but intends to rely on any documents to dispute the tenant’s claims, they must file these documents within 14 days of this order.”

7. Orders were made on 24 January 2025 as follows:

“3. If the respondent also has a claim they want dealt with at the next hearing, they must file their application with Tenancy Services within 14 days of this order and refer to the current application number.

4. If either party intends to produce any additional documents at the next hearing, they must send two copies to the Tribunal at least 14 days after the date of this order.”

8. The respondent landlord did not file a cross application claim but did file evidence in response to the tenants’ claims.

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9. At the end of today’s hearing the respondent sought to raise claims for water and repairs, however, as no cross-application was filed these could not be determined today.

Tenant claims

Bond Refund

10. The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.

11. Section 22B(2) Residential Tenancies Act 1986 (RTA) provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.

12. It is now more than six months since this tenancy ended. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.

Did the landlord fail to lodge the bond?

13. The tenants claim the landlord has not lodged the bond with the Bond Centre within the required time.

14. 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.

15. 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.

16. The tenants paid a bond of $3600.00. This was forwarded to the landlord by MSD and the tenants are repaying the advance to MSD in instalments.

17. The landlord failed to lodge the bond. I find they have committed an unlawful act.

18. 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.

19. The tenants stated that they did not become aware that the bond had not been lodged until the end of the tenancy. When they requested a bond refund the landlord unilaterally deducted an amount from the bond and sent the balance of $1199.00 to MSD. The tenants stated that they did not agree to the deduction

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and explained to the landlord that they were paying MSD in instalments for their bond.

20. After the proceedings were filed by the tenants the landlord contacted MSD who refunded him the $1199.00. The landlord has continued to hold the full bond.

21. The tenants stated that the delay in resolving the bond issue has caused them stress and financial difficulty.

22. The landlord stated that this was his first rental property as a landlord, and he did not know about the requirement to lodge the bond. He provided proof that he has lodged the bond for the next tenancy.

23. Ignorance of the law does not relieve the landlord from responsibility or liability for the non-lodgement of the bond.

24. That the landlord’s breach was intentional can be more than reasonably inferred from his failure to lodge the bond, even after he became aware of the failure some time ago and currently to this present day.

25. The landlord has effectively had possession and possibly the use of the tenants’ money for 1 year and failed to comply with his obligation to protect the bond payment by lodging it in the Bond Centre.

26. Further, the failure has caused stress and inconvenience for the tenants, who have been obliged to pursue the bond’s return through the Tenancy Tribunal.

27. It is in the public interest that landlords understand lodgement of a bond at the Bond Centre is a serious responsibility. Some landlords who do not lodge bonds use the money to pay their debts and the money is not available at the end of the tenancy. Others insist on keeping some bond money at the end or none will be refunded. There are very good reasons that the bond should be held by a neutral body during the tenancy.

28. Also, the interest on bond money helps to pay for the tenancy advice and dispute resolution services. The fewer bonds that are lodged, the more the taxpayer must then contribute.

29. Having considered the factors in this case I find that it would be just to order the landlord to pay exemplary damages and order the landlord to pay the sum of $600.00 being at the lower end of the scale.

Did the landlord breach their obligations under section 45 of the Residential Tenancies Act 1986?

30. [NAME] and [NAME] claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

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31. Under section 45, a landlord has obligations including that they must provide and maintain the premises in a reasonable state of repair and comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

32. The tenants claimed that the landlords breached their obligations as follows:

33. Rat infestation at the property – the tenant claimed that there was a rat in the ceiling. The landlord was notified and promptly arranged a pest control contractor, who attended the premises and laid bait. However, there were ongoing problems as the rat died in the ceiling. The tenant stated that she called the landlord who called pest control again who could not initially find the rat but then returned and removed the rat. The landlord claimed that this issue had been dealt with promptly and provided copies of messages indicating a timely response to this issue. Rodents can be a problem. Having considered the evidence I am satisfied that the landlord responded promptly to address the issue.

34. Leaking roof over the outdoor patio – the tenant claimed that there was a leak on the patio roof. There were no photographs provided or evidence of communication with the landlord about this issue as the tenant advised that she spoke to the landlord about it. The landlord denied any knowledge of a leak on the patio roof. There was insufficient evidence provided by the tenant to prove this claim.

35. Gaps in the windows and doors when closed – the tenants claimed there were gaps in the windows and doors when closed and that she informed the landlord of these. The healthy homes 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.

The tenant was not able to provide photographs of the gaps or evidence of written communication to the landlord about the issue and was not clear when the verbal notification was given. The landlord provided a building inspection report that was undertaken in December 2023 prior to purchasing the premises in January 2024. This report points out gaps in windows in one bedroom. The landlord stated that this was repaired by the vendor as a requirement to the purchase being completed and was confirmed with him prior to purchase. The landlord provided a recent message from the property inspector confirming that he returned to the property again in January 2025 and the matters raised in his report had been addressed. As the tenant has not provided evidence of communication with the landlord about this issue during the tenancy I find that the tenant has not proved this claim to the required standard.

36. Wet wall in one bedroom – the third bedroom in this tenancy was a garage which has been converted into a rumpus room. The tenants claimed that there were dampness issues in this room and that one wall of the room was wet on winter mornings. The landlord was notified of this in July 2024, and copies of

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text message communication was provided. The landlord attended the premises and because at the time he attended he did not see moisture he took no further action. He claimed that he was waiting for the tenant to send him photographs of the moisture. Landlords have an obligation to fully investigate when tenants raise a maintenance issue. In this case the landlord did not call a contractor to investigate the moisture issue when notified. The tenants stated that [NAME] and her young child were in this room which was cold as a result of the dampness issues.

There was a dispute of evidence between the parties as to whether this room was advertised as a third bedroom or as a rumpus room. The tenant produced a copy of the Facebook advertisement from January 2024 referring to a three- bedroom house. The landlord claimed it was advertised as a two bedroom. I find that it is more likely than not that this was advertised as a three-bedroom home, therefore, when the tenant raised an issue about dampness in the rumpus room the landlord needed to take this seriously and investigate as people were sleeping in the room. I find that the failure to send a contactor to investigate was a breach of his obligations.

37. House alarm continuously going off – the tenants claim that the house alarm was never turned on by them but would still sound at random times including during the night or early morning. The tenant stated that she notified the landlord but as he took no action, she contacted the alarm company who advised her to cut the wires. She stated that she told the landlord who did not oppose her action. The landlord agreed that at the beginning of the tenancy he was notified that the alarm went off and he supplied the pin number. He stated that he was not aware of further problems with the alarm. As I was not provided with evidence of when the problem occurred or of the tenant’s notification to the landlord and as this matter was resolved by the tenant there is insufficient evidence to prove the landlord failed to maintain.

Compensation

38. The tenant seeks compensation by way of a rent reduction.

39. I have found that the tenant has proved the claim in respect of the failure to investigate the damp wall in the rumpus room. The other maintenance claims were not proved.

40. The Tribunal can order a landlord to pay such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any provision of the Residential Tenancies Act (section 77(2)(n)).

41. The Tribunal has jurisdiction to make such award pursuant to section 77(2)(n) of the Act: [NAME] v [NAME], DC Wellington, TT223/93, 12 November 1993. Awards of compensation are generally modest. I find that the failure to

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adequately investigate the dampness issue raised by the tenant affected the tenant’s use of and enjoyment of the premises and award an amount of $200 per month, for the two months from the notification in July 2024 to the end of the tenancy, being $400.00 in compensation.

Did the landlord breach the Healthy Homes obligations?

42. [NAME] and [NAME] claims that the landlord has breached their Healthy Homes obligations under the Residential Tenancies Act 1986 (RTA).

43. Under section 13A (1CA) RTA, a landlord must include in a tenancy agreement a statement made and signed by the landlord that on or after the commencement of the tenancy the landlord will comply with the healthy homes standards as required by the RTA and including the information regarding the standards as prescribed by the regulations.

44. Failure to comply with section 13A (1CA) of the RTA is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A45(1F) and Schedule 1A Residential Tenancies Act 1986.

45. The landlord failed to provide a healthy homes statement or information. I find they have committed an unlawful act.

46. 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.

47. The landlord stated that this was his first rental property as a landlord, and he did not know about the healthy homes requirements.

48. Ignorance of the law does not relieve the landlord from responsibility or liability for breaches. A landlord has an obligation to be aware of the laws relating to their business and to comply.

49. The healthy homes standards were introduced to ensure that tenants were provided with warm, dry, well-ventilated homes. It is in the public interest that landlords understand that ensuring their premises are healthy homes compliant and providing this information to tenants is an important responsibility.

50. Having considered the factors in this case I find that it would be just to order the landlord to pay exemplary damages and order the landlord to pay the sum of $250.00 at the lower end of the scale as this is his first tenancy and first breach of this kind.

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51. [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

G Guptill

10 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: