Tenant Wins Breach of Tenancy Agreement Case at Tenancy Tribunal

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[2025] NZTT 5159035

TENANCY TRIBUNAL AT BLENHEIM | TE TARAIPIUNARA RETIHANGA KI TE WAIHARAKEKE

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

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

ORDER

1. [COMPANY] must pay [NAME] and [NAME] $1,227.00 immediately.

Description Landlord Tenant Filing fee reimbursement $27.00 Exemplary damages: Bond not lodged $200.00 Exemplary damages: Failure to maintain (insulation) $500.00 Exemplary damages: Illegal entry $500.00 Total award $1,227.00 Total payable by Landlord to Tenant $1,227.00

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Reasons:

1. Both parties attended the hearing. [NAME] represented the landlord.

2. The tenants sought compensation and exemplary damages.

3. The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in [NAME] v [NAME] ([NAME]) TT233/02. Judge Mather stated:

“…[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

4. In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Failure to maintain

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

6. Under section 45, a landlord must comply with all requirements in respect of insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

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 Residential Tenancies Act 1986.

8. The landlord has failed to install underfloor insulation. I find they have committed an unlawful act.

9. The landlord had also failed to meet the HHS standards but at this stage, a new tenancy must be compliant within 120 days of the tenancy commencing (this tenancy lasted 67 days). This tenancy ended before such a timeframe lapsed. Therefore, no orders are made regarding the lack of mechanical extraction in the kitchen and bathroom.

Illegal entry

10. [NAME] and [NAME] claims the landlord has entered the premises without consent or notice.

11. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for

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inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

12. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

13. The landlord admitted to two entries into the premises near the end of the tenancy. I find they have committed an unlawful act.

Bond lodgement

14. [NAME] and [NAME] claims the landlord has not lodged the bond with the Bond Centre within the required time.

15. 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.

16. 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.

17. The landlord failed to lodge the bond of one weeks rent taken. I find they have committed an unlawful act.

Should exemplary damages be awarded?

1. As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.

2. 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).

3. 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) RTA

4. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this:

In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to

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intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.

5. The failure to lodge the bond was accepted. There is no reasonable excuse in this instance but I have considered the return of the bond already, the small amount taken (one week – for a boarding house tenancy such a bond can be retained by the landlord) and the landlord willingness to improve. Any future breaches will likely incur a great order but having considered the factors here I award $200.00 exemplary damages for the landlord failure to lodge the bond.

6. The failure to complete the required insulation was accepted. The landlords explained they are progressively improving the premises at this address. That is not a sufficient excuse to not comply with statutory requirements such as here. Having considered the likely impact on the tenants I have awarded $500.00 exemplary damages for this failure.

7. The last unlawful act was at least two entries into the premises by the landlord. In mitigation I accept these took place during the tenants transition out of the tenancy, but still during it. The decision to use the key to inspect progress was poor. It would have been more appropriate to request such advice from the tenants by phone, with permission for entry granted as sought and granted. I consider the landlord urgency was motivated by the pending start of a new tenancy but that is no excuse. Given the stage of the tenancy and the transitioning out, the impact on the tenants was lesser than if during the regular tenancy. I have no evidence to support the claims of earlier entries by the landlord. Illegal entry by a landlord is of significant public interest and an order of exemplary damages is consider just in this instance. I award $500.00.

8. All orders are at the lower end of the scale of exemplary damages. This is deliberate and considered a balance of the respective considerations.

Compensation

9. I decline any compensation orders. The likely extra electricity costs incurred due to any failure of the landlord stay with the it as electricity was inclusive of rent.

10. I do not have sufficient evidence of adverse, specific impacts that make establish grounds for any orders for compensation. I have also considered the uncontested early release by the landlord from the tenancy, less than the required notice period.

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Tenancy management

11. I expressed my concerns to the landlord regarding the current tenancy agreement used. They should consider adopting the Tenancy Services template as that structure will assist both them and future tenants.

12. I heard of positive aspects of the tenancy, property, and interactions between the parties. When a landlord is also a neighbour, clearer demarcation of the two functions is in everyone’s best interests.

Filing fee

13. [NAME] have substantially succeeded with the claim I must reimburse the filing fee.

M Brennan

14 April 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: Should exemplary damages be awarded?