Tenant Wins Damages for Landlord's Breaches

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[2025] NZTT 5145508

TENANCY TRIBUNAL AT [Event location suppressed]

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

2. [NAME] must pay [The tenant/s] $16,126.00 immediately, calculated as shown in table below:

Description Landlord Tenant Exemplary damages for breach of Ss 19, 45 & 54 $14,000.00 Compensation $1,099.00 Refund Bond $1,000.00 Filing fee reimbursement $27.00 Total award $16,126.00 Total payable by Landlord to Tenant $16,126.00

Reasons:

1. Both parties attended the hearing, the landlord by telephone.

2. On 24/1/2025 the tenant filed an application for compensation, work orders and exemplary damages for lack of insulation details in the tenancy agreement, non- lodgement of the bond, the state of the premises and retaliatory notice.

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3. As the tenancy is due to end on 17/3/2025 it is no longer necessary to determine the issue of work orders.

4. However, and for the avoidance of doubt and based on the evidence set out below work orders would have been made had the tenancy continued.

5. The tenancy was a periodic tenancy which began on 6/4/2018 at a weekly rental of $250.00.

Did the landlord fail to include an insulation statement in the tenancy agreement?

6. A landlord must include a signed statement in the tenancy agreement that provides the following information:

a. whether or not insulation is installed in any ceilings, walls and floors, and

b. details of the location, type and condition of all insulation installed.

See section 13A(1A) Residential Tenancies Act 1986.

7. Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.

8. Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.

9. The tenant submitted that there was no information about insulation in the tenancy agreement signed on 6/4/2018.

10. In response the landlord said he didn’t know he had to include details in the tenancy agreement but that there were pink batts in the ceiling which he had installed when his mother lived in the premises.

11. I find the evidence supports that the landlord failed to provide the required information in the tenancy agreement about insulation and has committed an unlawful act.

Did the landlord lodge the bond?

12. [The tenant/s] claims the landlord did not lodge the bond with the [COMPANY] after it was paid to him on 3/4/2018.

13. The landlord agreed he did not lodge the bond, although he “sort of” knew he was supposed to do so but did not “know how to”.

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14. A landlord must send any bond payment to the [COMPANY] 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. There is no dispute that the landlord has not lodged the bond and I find he has committed an unlawful act.

Did the landlord comply with his obligations?

17. [The tenant/s] claims that the landlord has breached his obligations by failing to repair a window that was cracked at the beginning of the tenancy, a sliding door that had only had a temporary fix since 2019 and an oven that malfunctioned on 15/12/2024.

18. The tenant issued a 14 day notice to the landlord on 11/1/2025.

19. In response, the landlord agreed he had not undertaken any of the repairs, the only matters he had paid for in the six years of the tenancy being burst water pipes.

20. With respect to the oven the landlord said he had not had it repaired because he “had no money”.

21. Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.

22. 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) and Schedule 1A Residential Tenancies Act 1986.

23. I am persuaded by the evidence of both parties that the landlord did not provide the premises in a reasonable state of repair and took insufficient reasonable steps to attend to repairs when advised by the tenant.

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

Was the notice to terminate the tenancy valid?

25. On 23/1/2025, the landlord gave the tenant a 90 day notice to end the tenancy.

26. The tenant claims the notice is retaliatory because it was sent 12 days after she issued her 14 day notice about repairs and a month after she had told the landlord he needed to give her written notice of an increase in rent 60 days before any increase could take effect.

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27. In response, the landlord suggested that he gave the tenant notice because he wanted to sell the property and he relied on information from a real estate agent about the wording of the notice.

28. Before 30/1/2025 when new termination provisions came into force, under section 51(2)(a) a landlord could terminate a periodic tenancy by giving at least 90 days notice if the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale.

29. Under subsection (3) every notice must be in writing, identify the premises, specify the date the tenant is to vacate the premises and the reasons for termination.

30. I find the notice of 23/1/2025 was not valid.

31. The notice did not specify the date the tenant needed to vacate by.

32. In addition, the reason given for the termination was that the landlord found it difficult to manage and maintain the property because he lived remotely, which is not one of the reasons provided for in section 51.

Was the notice retaliatory?

33. 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.

34. 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.

35. What is at issue is whether the notice was of any effect because in giving the notice the landlord was motivated either wholly or in part by the exercise by the tenant of any right, power, authority, or remedy conferred by the tenancy agreement or Act.

36. There are four issues to consider:

a. Does the termination notice comply with s 51 RTA?

b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances.

c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord?

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d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?

37. As mentioned above the notice does not comply with section 51.

38. The application by the tenant was made on 24/1/2025, 1 day after the notice to terminate was issued, so was therefore in time.

39. The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to … to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.

40. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.

41. His Honour Judge Ongley found in [NAME] v [NAME] DC Porirua M.A. 244/88 3 November 1988 that a notice was not retaliatory if it was given for genuine and fair reasons.

42. I find the evidence of the landlord does not support that the notice terminating the tenancy was given for fair and genuine reasons but was retaliatory.

43. The time between the tenant first raising issues about rent then repairs and receiving the notice was very short, being just over one month.

44. In addition, the steps taken by the landlord to put the property on the market are at best limited. While the landlord did ask a real estate agent for a sale appraisal, he was unable to remember anything other than the agent’s first name or any details about the appraisal.

45. The evidence does not support that the tenant’s issues were frivolous or vexatious.

46. I consider the landlord was motivated by the tenant exercising her rights under the tenancy agreement and legislation in issuing the termination notice.

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

Should compensation and or exemplary damages be awarded?

48. As I have found the landlord committed unlawful acts by failing to include insulation details in the tenancy agreement, failing to lodge the bond, failing to provide and maintain the premises in a reasonable state of repair and issuing a retaliatory notice I must consider the issue of exemplary damages.

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49. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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.

50. Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General ([NAME]) v [COMPANY] (HC CIV 2010-412-134).

51. However, because of the time limit in section 109(2)(b) I am unable to award any exemplary damages for the failure to provide insulation details in the tenancy agreement.

52. In making an award of exemplary damages I need to consider the four matters set out in section 109(3).

53. First, I need to consider the intent of the landlord for the unlawful acts of failing to lodge the bond and failing to provide and maintain the premises in a reasonable state of repair.

54. Pursuant to section 109(3A) intent is not required for retaliatory notice.

55. For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” [NAME] Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.

56. That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”

57. I consider there is more than enough evidence to find that the landlord intentionally failed to lodge the bond or undertake repairs.

58. The landlord agreed he knew about lodging the bond but because he didn’t know how decided not to do so, which meant he kept money for 6 years which he was not entitled to.

59. The reason the landlord gave for failing to do repairs was lack of money. Rather he believed the tenant was only paying a “cheap” rent which did not cover his outgoings.

60. The effect on the tenant has been significant. She said she had been afraid to raise issues with the landlord because she might lose her tenancy, which is in effect exactly what has happened.

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61. The legislation provides for bond money to be used for dispute resolution procedures under the Act. Non lodgement is a loss and against the public interest.

62. A bond is tenants’ money and must be lodged with the [COMPANY] within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there is not deterrent.

63. The difficulty for the tenant when the landlord has not lodged the bond is that return of the money may well be delayed.

64. The renting of premises is a business. Tenants have rights and landlords obligations which should not be ignored.

65. There is no doubt from the evidence that the attitude of the landlord was to manage the tenancy from a distance and do little or nothing provided the tenant kept paying her rent.

66. Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just to award exemplary damages at the very high and maximum end of the scale.

67. I have awarded $14,000.00 as follows:

a. $1,500.00 for the breach of section 19,

b. $6,500.00 for the breach of section 45,

c. $6,000.00 for the breach of section 54.

68. In addition, I have awarded the compensation sought by the tenant of $1,099.00 for the 6 winters she suffered draughts due to the lack of maintenance of the sliding door and the 3 months she has been without an oven.

69. As the tenancy ends in 4 days the landlord is ordered to refund the bond.

70. As [The applicant/s] has wholly succeeded with the claim I must award the filing fee.

71. Suppression is granted to the tenant pursuant to section 95A because she was wholly successful with the claim.

[NAME] 13 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 [NAME]/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 [NAME]/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: [NAME]/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

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.[NAME]/disputes/enforcing-decisions https://www.[NAME]/disputes/enforcing-decisions http://www.[NAME]/disputes/enforcing-decisions/

Reasons: