Tenant Wins Compensation for Landlord's Failures

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[2025] NZTT 5034573

TENANCY TRIBUNAL - Whangarei | Whangārei-terenga-parāoa

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] (trustees of the [COMPANY]) must pay [NAME] $4,027.00 immediately, calculated as shown in table below.

2. The [COMPANY] is to pay the bond of $800.00 (5179954-024) to [NAME] immediately.

Description Landlord Tenant Compensation: Failure to maintain common area garden $2,500.00 Compensation: Failure to take reasonable steps to prevent interference with tenant's use of car parking space

$1,000.00

Compensation: Incorrect water rates invoices $500.00 Filing fee reimbursement $27.00 Total award $4,027.00 Bond $800.00 Total payable by Landlord to Tenant $4,027.00

Reasons:

Background

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1. The background to this application and to the related application 5034560 are set out in my adjournment order dated 4 December 2024.

2. The second hearing took place in Whangarei on 29 January 2025. [NAME] represented himself and [NAME] at the hearing. [NAME] attended on behalf of the landlords.

3. The landlords did not file a cross-application or any further evidence in response to the 4 December adjournment order.

Failure to maintain common area garden

4. The property is a block of 9 units. [NAME]’s unit has a small grassed area at the rear. Beyond that there is a common area that extends to a creek, which is the legal boundary of the property.

5. [NAME] said that the previous owner maintained this common area very well. It was mostly grass, with large palms and small shrubs going down to the creek. This was a peaceful and enjoyable part of the property.

6. When the current owners purchased the property, maintenance of this area ceased. It quickly became overgrown with weeds, including vines that grew up and covered the palms and large weed trees such as flame trees and woolly nightshade. Most of the space turned into a dense ‘forest’ of weeds.

7. [NAME] said that he frequently raised this issue with [NAME].

8. He issued a 14-day breach notice on 22 March 2023.

9. In response to the breach notice, [NAME] arranged for a contractor to visit the property and give a quote for tidying up this area. The cost was substantial, including several thousand dollars to fell and remove the large flame tree alone.

10. No tree / weed removal was done, but a contractor began mowing the remaining grassed area.

11. The landlord is responsible for maintaining any common areas. This green space required maintenance by the landlord, just as much as a more ‘functional’ common area such as a driveway or a stairway does. The landlord’s failure to maintain the premises caused a loss of benefit for [NAME], and for every other tenant.

12. The loss of benefit is difficult to quantify in monetary terms.

13. [NAME]’s claim seeks payment of 20% of the total rent for the period of the tenancy. [NAME]’s tenancy lasted ten years. In arriving at that figure, [NAME] researched the rent for other nearby properties that are similar size but do not have a garden area.

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14. I acknowledge [NAME]’s argument that the common area is a valuable amenity, but in thinking about the bundle of amenities that comprise a tenanted premises (warm dry living areas, heating, cooking, etc) I think that [NAME] has over-estimated the value of this area, particularly considering that it is not part of the premises that are exclusively for [NAME]’s use.

15. Balancing these considerations, I will award compensation of $2,500.00.

Parking

16. Each unit has a carport.

17. [NAME] said he was often unable to use his carport because other residents parked their cars outside of their units and not in their carports. When the residents opposite [NAME] did this, there was insufficient room for him to manoeuvre in and out of his carport.

18. [NAME] kept a detailed and comprehensive record of the occasions that this happened, supported by time-stamped photographs from his dash camera.

19. [NAME] raised this issue many times with [NAME]. It is in [NAME]’s breach notice dated 22 March 2023.

20. At that time the person who occupied the unit opposite [NAME] was causing many issues with anti-social behaviour, the least concerning of which was inconsiderate parking. [NAME] took that person to the Tenancy Tribunal and terminated his tenancy.

21. [NAME] said that he has continued to have parking problems with the new occupant of that unit.

22. [NAME] acknowledged that he stopped raising the issue with [NAME], but he said that [NAME] was aware that it was a continuing problem because when she visited she could see the tenants’ vehicles parked outside their units.

23. [NAME] said that:

a. It is not possible for her to ‘police’ tenant parking.

b. When [NAME] raised the issue, she sent a letter to all tenants reminding them to use the carports.

c. She took action to terminate tenancies when serious anti-social behaviour issues arose.

24. Tenants have a duty to not interfere with the reasonable peace comfort and privacy of their neighbours.1

1 Section 40(2)(c) RTA

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25. Landlords have a duty to take all reasonable steps to ensure that none of their tenants interferes with the reasonable peace, comfort, and privacy of their other tenants.

26. I acknowledge [NAME]’s argument that a landlord cannot (and should not) intervene in all squabbles / disputes between neighbouring tenants. However, landlords are legally required to intervene when the threshold of “unreasonable interference” with their tenant’s peace, comfort and privacy is met.

27. My finding is that this threshold was met in this instance. The actions of [NAME]’s neighbours were a more than minor inconvenience. Their actions meant that he was unable to use his carport, an important amenity and part of the premises that he was paying rent to use.

28. This was not a one-off or infrequent incident. [NAME]’s detailed evidence shows that it happened many times a week, most weeks.

29. Given that the other tenants’ actions amounted to a breach of a legal duty under the Residential Tenancies Act 1986, [NAME]’s approach of occasionally reminding tenants about parking but generally leaving them to sort it out themselves was inadequate. The landlord is required to take “all reasonable steps” to prevent an interference with their tenant’s peace comfort and privacy.

30. In this instance an appropriate reasonable step would have been to issue breach notices to the tenants who were parking improperly. If the tenants failed to respond to those notices, the landlord could have brought an application seeking orders from the Tenancy Tribunal. [NAME] provided more than enough evidence to assist the landlord with such an application.

31. Therefore I find that the landlord breached its duty to take all reasonable steps to ensure that their other tenants did not interfere with [NAME]’s peace comfort and privacy by parking in such a way that they restricted his access to his carport.

32. [NAME] seeks compensation totalling $6,325.14, representing 20% of the rent for the days where his records show that access to his carport was blocked.

33. I acknowledge the logic and precision of [NAME]’s calculation of damages.

34. However, again in my view the total amount of compensation that he is seeking is disproportionate to the loss of amenity that he has suffered. I must also factor in that the landlord was not directly responsible for the interference with his peace comfort and privacy. Even if the landlord had taken all reasonable steps, [NAME] would have suffered a loss of amenity for a period of time (probably months) while the landlord went through the process of issuing breach notices, allowing time for the tenants to change their behaviour, and going down the Tenancy Tribunal path if they failed to.

35. Balancing these factors, I will award compensation of $1,000.00.

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Water rates

36. Each of the units has a water meter.

37. [NAME] read the meters periodically and send the readings to the landlords. The landlords then issued invoices.

38. During the tenancy [NAME] suspected that he and [NAME] were not being charged correctly for water use.

39. [NAME] investigated the issue thoroughly. He found that not only were the invoices inaccurate, they were based on “readings” that can only be described as fictitious.

40. Some of the more egregious examples are:

a. [NAME]’s meter was replaced with a new meter in November 2021. The new meter, of course, began with a reading of zero units. The invoices that [NAME] received after that new meter was installed had readings that correlated with the number of units on the previous meter. For example, [NAME] received an invoice on 21 May 2022 stating that the meter reading as at 7 March 2022 was 1329 units. This is clearly not possible. The landlord has not read the meter. They have taken the previous reading, added an arbitrary amount, and failed to remember that the old meter was no longer there. I note that for this March 2022 invoice the actual meter reading that [NAME] sent by text message to the landlord was accurate.

b. [NAME] received an invoice on 15 November 2022 which stated that the meter reading as at 14 October 2022 was 1222 units. [NAME] took a photograph of the same meter on 20 March 2023. The reading was 1123, which is 100 units less than the “reading” carried out five months earlier.

41. [NAME] is not seeking any reimbursement of overpaid water rates.

42. [NAME] is seeking exemplary damages.

43. If there was any legal basis for an award of exemplary damages, I would certainly award them in this instance. [NAME]’s evidence shows persuasively that the landlord’s water rates invoices were not just carelessly inaccurate, they were fraudulent.

44. However, the Tribunal may only award exemplary damages if a landlord or tenant has breached an obligation that the Residential Tenancies Act 1986 (“RTA”) declares to be an “unlawful act”. There are no unlawful acts specified in the RTA that apply to this sort of situation, and therefore no basis for me to make an award of exemplary damages.

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45. I will make an award of compensation to [NAME] for the countless hours that he spent investigating this issue and communicating with the landlord about it.

46. I will award $500.00.

Retaliatory notice

47. The landlords issued termination notices to [NAME] and [NAME] on 24 May 2023.

48. On 20 June 2023 [NAME] and [NAME] filed applications with the Tenancy Tribunal, challenging the landlords’ termination notices.

49. In July 2023 I made orders setting aside the notices. The basis of my finding was that the information that was available to the landlord at that time did not evidence a genuine intention to carry out extensive repairs and renovations, which was the stated basis for the termination notice.

50. [NAME] now seeks exemplary damages on the grounds that the notices were retaliatory. [NAME] noted that part of my reasoning in the July 2023 decision was that it is difficult to know whether a landlord’s stated intention is genuine when the notice relates to things that are going to happen at a future time.

51. [NAME] said that now that time has passed, it is very clear that the landlord never had any intention to repair or renovate the units. The landlord has taken absolutely no steps towards that work in the 18 months since the termination notices were issued.

52. [NAME] argued that if the landlord was not motivated by a genuine intention to repair / renovate the premises, it is a reasonable inference that their actual intention was to remove [NAME] and [NAME] because [NAME] persistently raised concerns about necessary maintenance, about the common area, and about the landlord’s inaccurate water invoices.

53. This is a persuasive argument. Again, if there was a legal basis for me to award exemplary damages in this instance, I would say that [NAME] and [NAME] are entitled to them.

54. The reasons why I cannot award exemplary damages are somewhat technical.

55. Firstly, the relevant section of the RTA was worded differently in 2023 than it is now. At that time, the section said that the Tribunal could make an order declaring that a termination notice was “of no effect” on the grounds that it was a retaliatory notice. The section said that:

The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect 2

2 Section 54(3) RTA, as at May 2023

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56. Therefore, the Tribunal could only award exemplary damages if the Tribunal had set aside the notice on the grounds that it was retaliatory.

57. In this instance, I did not set aside the landlord’s notices to [NAME] and [NAME] on the grounds that they were retaliatory. I set them aside on other grounds.

58. The wording of this section changed on 30 January 2025. The Tribunal may now make an award of exemplary damages even if the Tribunal does not make an order setting aside the notice on the grounds that it is retalitatory.

59. In determining the rights, obligations, and remedies of the parties, the law that is relevant is the law that was in effect when the relevant events occurred, not when the matter is heard by the Court or Tribunal.

60. Secondly, section 109(2) RTA states that a party may not bring an application for exemplary damages more than 12 months after the date of the unlawful act. In this instance the 12-month limit passed in May 2024. This application was filed on 13 October 2024. Ironically, the passing of time that [NAME] needed to support his argument about the landlord’s actual motivation, has worked against him in terms of his exemplary damages claim.

Bond

61. The tenancy has ended. The landlord has not made any claim for costs. The tenant is entitled to a refund of the bond in full.

Filing fee

62. [NAME] has been partially successful in this application and I will award him the filing fee.3

[NAME]

20 February 2025

3 Section 102(4)(a) RTA

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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: