Tenant wins damages for landlord's breaches at Tenancy Tribunal

OUTCOME: Allowed

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[2024] NZTT 4480189, 4568229, 4718529

TENANCY TRIBUNAL - Manukau

TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted] As Agent For [COMPANY_5]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY_3] [COMPANY_4] As Agent For [COMPANY_5] must pay [NAME_2] $2,888.26 immediately, calculated as shown in the table below:

Description Landlord Tenant Unlawful residential premises (rent rebate) $1,500.00 Auckland Council property file $73.26 Exemplary damages: Omitted information in tenancy agreement

$200.00

Exemplary damages: Late lodgement of the bond $200.00 Exemplary damages: Failure to provide up to date insurance policy details

$200.00

Exemplary damages: Failure to comply with Healthy Homes Heating Standard

$200.00

$500.00

Reimbursement of costs for lightbulbs $15.00 Total award $2,888.26 Total payable by Landlord to Tenant $2,888.26

2. [COMPANY_6] is to pay the bond of $1,200.00 (6077685-012) to [NAME_2] immediately.

3. [NAME_2]’s remaining claims are dismissed.

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4. [COMPANY_3] [COMPANY_4] As Agent For [COMPANY_5]’s claims are dismissed.

Reasons:

1. This matter consists of two tenant applications (applications 4480189, 4718529), and a landlord cross application (application 4568229). The tenant’s applications seek compensation and exemplary damages for various breaches by the landlord, filing fee reimbursement and refund of the bond. The landlord seeks rent arrears to 3 June 2023 ($399.99), power ($1,004.01), internet charges ($110.16), lawn mowing ($121.37), the call out fee for the plumber ($180.00) and refund of the bond, following the end of the tenancy.

Case conference

2. A case conference was held where the Tribunal clarified and outlined the tenant and landlord’s substantive claims (order dated 10 August 2023).

3. The tenant’s claims (application 4480189) were listed as follows:

a. Refund of bond b. Failure to prevent breach of quiet enjoyment by other tenants c. Breach of quiet enjoyment (harassment) by the landlord d. Breach of Healthy Homes (heating) standard e. Failure to maintain (plumbing/sewage in master ensuite) f. Failure to lodge bond within timeframe g. Interference with utilities (internet) h. Interference with washing facilities in garage – car fumes i. Failure to ensure other tenants maintain cleanliness of kitchen j. Misleading or ambiguous statements regarding responsibility for outgoings k. Unenforceable clause in tenancy agreement – maximum number of occupants l. Loss of amenity in relation to carparking m. Retaliatory breach notices/seeking to terminate without grounds n. Breach of privacy

4. Originally work orders were sought to remedy some of the issues however as the tenant had moved out of the premises those claims were noted as moot.

5. The landlord’s substantive claims were listed as follows:

a. Rent arrears of just over one week b. Outstanding power bill c. Callout fee for plumber

6. The landlord originally sought termination on the grounds of anti-social behaviour. However, as the tenant had moved out of the premises, that claim was noted as moot.

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7. It was also noted that no further claims could be added to this matter.

Nature of the tenancy

8. A preliminary issue raised during the case conference concerned the nature of the tenancy.

9. The tenancy premises consisted of a two-storey dwelling with a double internal garage, six bedrooms and three bathrooms. The tenant had signed a standard tenancy agreement but shared the house with other occupants, each of whom had their own standard tenancy agreement. While each occupant had exclusive use of their bedroom, they shared common facilities such as the kitchen, bathroom and lounge areas. The ground level was occupied by a couple and was mostly self- contained, while the upper level had 4 bedrooms, each occupied by a different tenant. In this case, the tenant's bedroom was partially self-contained, with its own bathroom and toilet.

10. Initially, the tenant believed his agreement was for a standard residential tenancy. However, he later questioned whether his tenancy might actually be classified as a boarding house tenancy. The landlord also sought clarification on this issue.

11.By order dated 16 November 2023, the Tribunal declared that [COMPANY_3] T/A [NAME_4] as agent for [COMPANY_5], was the landlord and [NAME_1] was the tenant of a residential boarding house tenancy at [ADDRESS], [POSTCODE]. The Tribunal’s decision is set out below:

Was the tenancy a boarding house tenancy?

2. The first issue the Tribunal determined, was whether [NAME_1]’s tenancy was a boarding house tenancy.

3. The definition of a boarding house is found in section 66B of the Residential

Tenancies Act 1986 (“RTA”).

4. In that section, a boarding house is defined as:

boarding house means residential premises—

a. containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and

b. occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time

5. The pragmatic question of “what is a boarding house” has been settled by the High Court in Karmarkar v Pandem & Ors [2018] NZHC 693. Although expressing some reservations His Honour Justice Van Bohemen suggested five questions which made “sense” of the circular definitions for a boarding house in the legislation.

6. His Honour found that if the answer to all the questions was “yes” then the premises were a boarding house.

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7. The questions were:

a. Does the house contain one or more bedrooms along with facilities for

communal use by the tenants?

b. Is the house occupied or intended to be occupied by six or more tenants?

c. Is the tenancy intended to, or does in fact, last for 28 days or more?

d. Are the tenants granted exclusive rights to occupy particular bedrooms,

whether that occupancy is for single or shared use?

e. Does the right to occupy a particular bedroom derive from the tenancy

agreement between the individual tenant and the landlord rather than from

a collective decision of the tenants?

8. I consider the answer to all five questions is “yes” and find the premises do meet the definition of a boarding house.

9. My reasons for this are:

a. The property is a two-story dwelling with 6 bedrooms (two on the bottom

level are self-contained ie with an ensuite).

b. The tenants share a kitchen and bathroom facilities

c. In Man-oock Holdings (2017) Limited v Kalauta [2018] NZDC 7953 His Honour Judge Crosbie discussed the criteria in Karmarkar. At paragraph [22] (b) His Honour stated “The number of tenants – there were only two tenants living in the property at the time the respondent moved in and the appellant relies on this in support of its position. However, under s 66B a boarding house is defined as residential premises that is “occupied, or intended to be occupied, by at least 6 tenants at any one time.” Therefore, the fact-finder is not restricted to looking at the actual number of occupants, but rather the potential number of occupants at the property.”

d. Although only up to 5 tenancies existed at any one time (ie. 5 bedrooms were occupied by tenants) there was potential for a 6th bedroom to be used allowing six tenants.

e. The tenancy was intended to last for more than 28 days.

f. The tenancy agreement between the parties provides that the tenant occupies a specific room.

10. At the time of [NAME_1]’s tenancy, I find the premises was a boarding house and therefore his tenancy was a boarding house tenancy. The substantive claims raised by the parties are therefore considered in line with the boarding house provisions and any other relevant provisions of the RTA.

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12.The Tribunal clarified that the substantive claims would be considered under Part 2A of the Residential Tenancies Act 1986 ("RTA"), which pertains to boarding house tenancies. As a result, any claims in the applications referencing sections related to non-boarding residential tenancies would be interpreted as referring to the equivalent sections in Part 2A, where applicable.

Additional claims

13.The tenant sought to add new claims. The Tribunal reminded the tenant that it could only consider the claims originally submitted. Following this, the tenant filed a second application, seeking compensation and exemplary damages for several issues, in addition to any matters raised in the initial application that were still relevant to a boarding house tenancy:

1. Contents of Boarding House Agreement

• No Statement of whether the tenancy is intended to last 28 days or more.

• No Room number to which the tenancy agreement relates.

• No statement to whether the boarding room that I rented was shared by other tenants or the maximum number of tenants who can occupy the room.

• No statement to whether the tenancy is a joint tenancy.

• No statement of the services to be provided by the landlord.

• No fire evacuation procedures that apply to the premises.

2. Landlords Obligations at Start of Tenancy

• Was not provided with copy of House Rules.

• A list of services provided by the landlord not included in the rent and their cost.

• No Fire Safety document or Fire Extinguisher in the property.

• Landlord did not comply with HHS’s [Healthy Homes Standards]

3. Landlords Ongoing Obligations

• The landlord did not ensure that the facilities remained in a reasonable state of cleanliness.

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• Did not ensure that copies of house rules or fire evacuation procedures were always on display – the entirety of the tenancy.

• Did not take any reasonable steps to ensure that any house rules were in place let alone enforce them in a fair and consistent manner.

4. No attempt to mitigate damage or loss after the breach.

5. Unlawful Residential Premises.

6. Never received a receipt for the payment of Rent.

7. The insurance policy stated in the agreement is not up to date. And no notification of update.

8. Notice given assumed minimum notice for rental tenancy.

9. Outgoings Responsibility – paid outgoings which were landlords’ responsibility.

10. Unlawful Entry

14.Since the hearing had been adjourned and the tenant had filed a second application, it was deemed reasonable to schedule the second application alongside the original one, allowing all claims to be considered and determined together.

15.The tenant subsequently withdrew claims relating to never received a receipt for the payment of rent, deception by editing official information from trades and interference with washing facilities in garage – car fumes.

16.The landlord’s application was amended to include a claim for internet charges.

17.This matter was considered over several lengthy hearings. [NAME_1] and [NAME_7] (for the landlord) attended in person providing extensive submissions and evidence (including video and audio recordings).

18.The documentary evidence submitted by both parties has resulted in a voluminous Tribunal file. While I regret the delay in issuing this order, it has been necessary to thoroughly review and consider the extensive documents provided by each party, which has contributed to the time taken.

Relevant legal principles

19.As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish with evidence that what they are claiming is more likely than not correct. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

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20.As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

… [L]ike anyone who brings an application before a Tribunal or 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.

21.The Tribunal can award compensation where a party has been in breach of the RTA or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

22.Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said:

Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

23.Exemplary damages are awarded at the Tribunal’s discretion. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District 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 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.

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If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account:

(a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful

act was committed; and (d) The public interest

24.The maximum levels of exemplary damages are set out in Schedule 1A RTA.

Conduct of proceedings

25.Before addressing the substance of the applications, it is necessary to comment on several concerns raised by the tenant, particularly those related to the conduct of proceedings before the additional claims were heard.

26.The tenant stated:

I wish to address certain aspects of the previous hearing that have left me with unresolved concerns. I seek clarification on how to approach similar situations today, as I understand this may be my final opportunity to do so. I respectfully wish to highlight the concerns I had during the previous court session regarding the decisions made. My intention is to bring these matters to your attention with the utmost respect for your stature and position.

In preparing a written presentation, my aim was to enhance the clarity and coherence of my arguments, recognizing my tendency to become nervous and less articulate in verbal settings. However, due to time constraints, I had to deviate from my prepared text, resulting in the omission of certain points. My concern arises, from decisions and statements made by you during our discussion that appeared unfair, considering you had not yet had the opportunity to review the document I had just provided, despite your assurance that you would do so later, such as a remark about the classification as unintentional directly after ruling it was a boarding house.

Furthermore, a remark from the last hearing suggested a misunderstanding of the scope of the issues at hand. It was implied that the problem was isolated only to the kitchen, whereas the cleanliness issue affected the entire house. This misinterpretation overlooks the breadth of the impact on my quiet enjoyment of the property, contrary to the guidance received during the case conference to focus on the most severely affected area, limiting my claims, and showing a bias towards the property manager, based off guidance given at the case conference, which you may be unaware of. This is a pattern throughout my concerns.

During the previous court session, your rulings have allowed for the presentation of both late and irrelevant evidence by the landlord,

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contrary to explicit guidelines from the case conference [NAME_8]. She specified that such evidence should only be considered in relation to the issue of Retaliatory Breach notices/Seeking to Terminate Without Grounds and be submitted no later than S days prior to the hearing, both of which, were not upheld, again showing bias towards the other party.

Despite the initial uncertainty over whether the tenancy should be classified as a rental or boarding house agreement, the tribunal restricted my claims to only those I had already lodged, effectively disadvantaging me. It is concerning that the landlord's initial provision of an agreement as a rental tenancy, which was later deemed illegal, has effectively allowed him to avoid accountability for his actions under the guise of a different agreement. This sets a concerning example of evading laws by misrepresenting the tenancy type.

I was disappointed that my request for a remote hearing was declined without consideration of the reasons I provided. The financial burden of attending multiple hearings in Auckland, particularly the most recent one that was cancelled after I had already incurred accommodation and flight costs, has been challenging. While I understand that proving any advantage taken by the opposing party is impossible, it was disheartening to feel as though my circumstances were not fully considered. I hope that going forward, there can be a more balanced approach to such situations.

I observed a departure from the standard order of proceedings during the hearing, with the opposing party allowed to interrupt and respond at their discretion, disrupting the flow of events. I believe adherence to the standard procedure, where the applicant speaks first followed by the opposite part’s reply, followed by my right to final reply. This is crucial for ensuring a fair and orderly process, I respectfully request a return to this standard procedure.

Tribunal’s discretion in running the hearing

27.The Tenancy Tribunal operates under the RTA, which grants it the discretion to manage its proceedings. As per section 85(1) RTA, the Tribunal must act in a manner that is fair and just, but it is not bound by strict legal procedures. It is empowered to determine the most appropriate way to resolve disputes, including setting time limits and admitting evidence.

28. It has been stated in a number of cases that it is up to the [NAME_8] as to how the proceedings are conducted. This is reflected in section 96(4) RTA, which states that, except as expressly provided in the Act or in any regulations made under the Act, the Tribunal may regulate its own procedure in such a manner as it thinks fit.

29.The position, in that regard, is similar to that in the Disputes Tribunal, and I refer to [NAME_9] v [COMPANY_10], CIV-2012-[PHONE], District Court, 9 January 2013:

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While a Tribunal must comply, in a general sense, with the rules of natural justice and give each party a fair opportunity to be heard, there are no restrictions in the [Disputes Tribunal] Act on the way a Tribunal carries out its hearings. They are, in virtually all cases, carried out in a far more informal way than a claim in this [District] Court would be. [Referees] are entitled to fix their own way of proceeding provided only that they comply, in a general sense, with the rules of natural justice. A [referee] need not proceed in exactly the same way as some other [referee] might proceed and, indeed, a [referee] is not bound to proceed in one case in exactly the same way as he or she has proceeded in another case. (Paragraph [9])

30. In that case, the Judge was also prompted to say:

It is clear from my own observation and from the transcripts that the [appellant] is not only an intelligent person, [she] is also quite a strong minded assertive person. [She] also is one who is prone to a discursive and very digressive approach in her presentation of a case. That is something that I have commented on, on a number of occasions, over these two hearings. … The [referee] had not only the right to control these matters but had a duty to be quite firm handed in the particular circumstances which means that [she] may, on occasion, disagree with how the [appellant] would have liked things to have been run. It is the [referee], not the [appellant], who has got that duty and that power. … the mere fact that a party has not been permitted to say everything that they [NAME_11] to say about a case is not a ground for saying that the party had their rights to be heard breached. (Paragraphs [39], [40] and [44])

31.This aligned with the conduct of the present proceedings, which have been conducted with the above statements in mind.

Claims restricted to those originally filed

32.The Tribunal’s restriction on adding new claims outside those originally filed was outlined in the case conference notes and applied equally to both parties. This ensures procedural fairness and avoids surprises, allowing both sides to prepare adequately. While the tenant felt unfairly limited, the Tribunal allowed extensive claims by the tenant—14 in the first application and up to 10 additional claims in the second. This demonstrates the Tribunal’s commitment to providing the tenant with significant opportunities to present their case, contrary to allegations of bias.

Cleanliness issues and scope

33.The tenant’s concerns about cleanliness issues affecting the entire house, not just the kitchen, were acknowledged. However, the Tribunal focused on the kitchen as the area most affected, based on the guidance provided during the case conference

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and the evidence submitted. This focus does not necessarily indicate bias but reflects the Tribunal’s need to prioritise key issues within the time available.

Late and irrelevant evidence

34.The tenant alleged that the landlord presented evidence late and outside the scope permitted by the case conference notes. However, section 85(2) RTA allows the Tribunal flexibility in admitting evidence if it deems it necessary for a fair determination. While strict adherence to pre-hearing directions is desirable, the Tribunal’s decision to allow late evidence lies within its discretion. This does not inherently indicate bias unless evidence clearly demonstrates favouritism, which has not been shown here.

Tribunal’s review of evidence

35.The tenant expressed concern that his documentation was not reviewed immediately. However, the Tribunal has discretion to manage the order and timing of evidence review during the hearing. It is not always possible or practical for Adjudicators to address every piece of evidence in the moment. While this may cause frustration, it does not inherently indicate bias or procedural impropriety.

Classification of the tenancy

36.The tenant argued that the classification of the tenancy as a boarding house tenancy disadvantaged them. While this concern is understandable, the Tribunal is required to apply the RTA based on the facts. The reclassification ensured the correct legal framework was applied, allowing the Tribunal to address claims fairly and hold the landlord accountable for any breaches.

Tribunal’s discretion over evidence

37.The tenant raised concerns about deviations from case conference directions. However, the Tribunal has broad discretion under section 85(2) RTA to admit evidence it considers relevant to a fair resolution. This flexibility applies equally to both parties and is designed to ensure the Tribunal has all necessary information, even if procedural irregularities occur.

Adherence to case conference directions

38.While the case conference notes set clear guidelines for evidence submission, the Tribunal may deviate from these directions when additional evidence is deemed necessary. This discretion ensures a fair resolution and does not inherently indicate bias or unfair treatment.

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Responsibility for presenting the case

39.The tenant expressed concerns about insufficient guidance from the Tribunal. However, it is the responsibility of each party to prepare and present their case. The Tribunal’s role is to ensure fairness and manage proceedings impartially, not to act as an advocate for either party.

Bias allegations

40.Allegations of bias appear to stem from decisions that did not align with the tenant’s expectations. Both parties were given substantial opportunities to present their cases, with the Tribunal admitting late evidence and allowing extensive claims by the tenant. There is no evidence to substantiate claims of bias, as the Tribunal’s decisions reflected an attempt to balance fairness and procedural efficiency.

Departure from the standard order of proceedings

41.The tenant raised concerns about interruptions during the hearing, which he felt disrupted the flow of proceedings. However, the Tribunal operates under section 85(1) RTA, which allows it to determine the most appropriate way to manage the hearing. While a structured order is the norm (applicant speaks first, respondent replies, applicant gives a final reply), the Tribunal may permit interruptions if deemed necessary to clarify evidence or address critical points. The tenant retained the final right of reply, ensuring he had the opportunity to respond to the landlord’s statements and present their concluding arguments.

Remote hearing request

42.The Tribunal declined the tenant’s request for a remote hearing, citing the complexity of the case and the volume of documentation presented. The Tribunal prioritises in-person hearings for complex matters requiring extensive examination of evidence. While the financial burden on the tenant is regrettable, such costs are typically borne by the parties unless exceptional circumstances apply.

Costs incurred

43.The tenant’s financial burden in attending hearings, while understandable, does not warrant compensation unless a specific breach by the opposing party is proven. Adjournments and associated costs are normal parts of legal proceedings and do not suggest procedural unfairness.

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Conclusion

44.The Tribunal acted within its statutory authority under the RTA, balancing procedural flexibility with fairness. Despite the tenant’s concerns about bias and unfair treatment, both parties were treated equitably. This reflects the Tribunal's commitment to resolving disputes in a fair and just manner, as mandated by the RTA.

45.The tenant’s dissatisfaction appears rooted in outcomes that did not align with his expectations rather than procedural improprieties. If the tenant believes there has been a substantial miscarriage of justice, he has the option to apply for a rehearing under Section 105 of the RTA.

Reasons for decision

46.This matter was heard over several lengthy hearings on 19 October 2023, 28 May 2024 and 5 September 2024 which traversed a copious quantity of written and verbal evidence, including recordings. It is not necessary for me to refer to every element of that evidence, and I do not do so. I adopt the position stated in [NAME_12] v [COMPANY_13], CIV 2011-090-00056, District Court, Waitakere, 27 April 2011 where it is said:

It needs clearly to be understood that an [NAME_8], or a judicial officer, in giving a decision on a case has no obligation to recite each and every element – to refer to each and every aspect – of the evidence presented. In writing a decision, which will necessarily involve an explanation of the outcome, an [NAME_8] or judge seeks usefully and fairly to select from the whole of what has been presented that which, in his or her judgment, will serve to explain the reasons for the conclusions reached. That, indeed, is part of the very process of adjudication. … There can be no room for complaint in those kinds of respects unless there is self evidence that there has been a failure or oversight in so far as paying due attention to crucial materials is concerned.

47.While I have not referenced every detail, all of it has been carefully considered.

48.With those comments, I turn to the substantive matters.

Analysis 49.The dispute between the tenant and the landlord centers on allegations of

significant breaches of the RTA. The tenant claims systemic failures by the landlord to maintain compliance with legal obligations and provide a safe, habitable environment. Conversely, the landlord contends that the tenant was the source of many of the issues, exhibiting disruptive behaviour and misusing legal processes to manipulate the situation.

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50.The tenant and the landlord presented sharply contrasting narratives regarding the issues that arose during the tenancy.

51.The tenant’s position in this dispute revolves around the violation of his right to quiet enjoyment and multiple instances of neglect and mismanagement by both the landlord, acting through the property manager, and fellow tenants. The tenant alleged a persistent failure by the landlord to uphold obligations under the RTA, including the provision of adequate fire safety measures, proper building consents, and appropriate house rules.

52.The tenant claimed he experienced recurrent issues related to disruptions and cleanliness in the communal areas of the house. Of particular concern was the kitchen including the presence of maggots, unwashed dishes, and accumulated rubbish left unattended for weeks rendering areas unusable and leading the tenant to seek a rent reduction as compensation. The tenant alleged that these issues were persistent and that the property manager, failed to address them adequately.

53.Efforts by the tenant to resolve the issues, including seeking legal advice and highlighting relevant legislation, allegedly escalated into harassment by the property manager. This harassment, coupled with ongoing neglect, led to emotional distress and, according to the tenant, forced the premature termination of his tenancy. The tenant sought compensation for relocation costs, emotional harm, and financial losses incurred as a result of the untenable conditions and harassment.

54.The tenant further argues that the landlord has failed to comply with several key legal requirements, making the premises unlawful for occupation citing breaches of the Building Act 2004, the New Zealand Building Code, and the Resource Management Act 1991.

55.Further, the tenant asserts that the landlord's operation of the property without the required zoning or resource consent violates the Resource Management Act 1991. Without the appropriate consent for the property's use, the landlord has further compounded the unlawfulness of the tenancy. These failures not only undermine the landlord's position but also entitle the tenant to seek additional remedies as provided under the law.

56.Additional grievances included unresolved plumbing issues, such as a sewage odour emanating from the shower drain, which the tenant paid a plumber to diagnose. The tenant also cited disruptions to internet service, which impacted their professional work, causing financial and reputational harm. Furthermore, the tenant disputed improper charges for electricity in the absence of a dedicated meter and sought a refund for these costs.

57.The tenant criticised the tenancy agreement for its vagueness, alleging it failed to specify roles and responsibilities or identify the arrangement as a boarding house tenancy. The tenant contended that the property manager, with over 30 years of industry experience, failed to comply with legal obligations and demonstrated

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deceptive behaviour, including attempts to undermine the tenant’s individual rights. The tenant argued that these issues highlighted the need for stronger regulation of property managers and sought exemplary damages to reflect the seriousness of the breaches.

58.The landlord, represented by the property manager, denies the majority of the tenant’s allegations and characterises the dispute as driven by the tenant’s difficult and combative behaviour. The landlord acknowledges certain administrative oversights, such as the initial misclassification of the tenancy type, but maintains that these were honest mistakes, not wilful noncompliance. The landlord contends that reasonable steps were taken to address issues raised by the tenant but that the tenant’s inflexible and aggressive demeanour made resolution difficult.

59.The landlord argues that the tenant’s allegations are exaggerated and part of a deliberate effort to disrupt the management of the property. Specific claims include that the tenant secretly recorded conversations with the property manager, fabricated complaints, and weaponised tenancy laws and external agencies to further his own agenda. The property manager claims that these actions caused significant distress to him and interfered with the management of the boarding house. The property manager describes the tenant as disruptive to other tenants, alleging that he bullied and threatened [NAME_14] while making unreasonable demands for their removal.

60. In summary, the tenant alleges systemic neglect, harassment, and noncompliance with legal obligations, while the landlord counters that the tenant was the primary instigator of discord, fabricating complaints and obstructing the smooth operation of the boarding house.

61.Both parties asked the Tribunal to consider their respective positions in light of the evidence and applicable legal framework. The resolution of this dispute hinges on the Tribunal’s assessment of the evidence, the credibility of each party, and the application of the relevant provisions of the RTA.

THE TENANT’S APPLICATION

Unlawful residential tenancy

62.The Tribunal may declare any premise to be unlawful residential premises. See section 77(2)(ac) RTA. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.

63.Where the Tribunal declares the residential premises to be unlawful, the Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.

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64.After considering the submissions, evidence, and relevant legal framework, I determine that the boarding house tenancy at [ADDRESS] constituted an unlawful residential tenancy under section 78A RTA. Below are the findings and reasons for this determination.

65. I find there was a failure by the landlord to comply with section 45(1)(c) RTA which requires compliance with any enactments or regulations to do with buildings. In this instance the relevant enactments include the Building Act 2004, the Buildings (Specified Systems, Change the Use and Earthquake Prone Buildings) Regulations 2005 (the BSSR), and the New Zealand Building Code. The lack of building consents and compliance with fire safety and plumbing standards renders the premises unsuitable for occupation and unlawful under section 78A(2)(b) of the RTA.

66.The correspondence with Auckland Council confirmed that the premises were not compliant with the building classification and lacked the required consents for operation as a boarding house. Under section 115 of the Building Act 2004, a change of use requires compliance with more stringent safety standards, including fire safety measures necessary for a building classified under “SA” (boarding house use). Failure to meet these standards poses a substantial safety risk, contravening section 78A(2)(b).

67.The fire safety deficiencies noted—such as the absence of evacuation procedures and necessary fire protection systems—jeopardised the safety of all occupants. Section 78A(2)(b) requires compliance with all laws regulating the health and safety of occupants. Additionally, the persistent issue of sewerage gases infiltrating the premises contravened Clause G13.3.1(c) of the New Zealand Building Code, which mandates effective plumbing systems to prevent foul air or gases from entering living spaces. This failure constituted an ongoing health risk to the tenant, exacerbating the unlawfulness of the tenancy.

68.Furthermore, the landlord’s operation of the premises without appropriate zoning or resource consent violated section 9(3) of the Resource Management Act 1991. The evidence clearly indicates that the property was neither expressly consented nor allowed as a boarding house use under district rules, thereby reinforcing its unlawful status.

69.Returning then, to section 78A RTA. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so.

70.The public policy behind the introduction of section 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their health and safe occupation by tenants. In moving that the bill relating to section 78A be read a first time in parliament, the Hon Dr [NAME_15] stated:

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…There have been examples around the country of garages or other properties that are being rented out that do not go anywhere near meeting the requirements of the Residential Tenancies Act but where there are limitations on our new compliance teams being able to enforce them because of that jurisdiction issue. My view is that the amendments in this bill that make it plain that the tribunal has full jurisdiction over unlawful residential premises will strengthen the regulatory environment and ensure that those people who attempt to rent out such properties are held accountable.

71. In the recent case of Harding v Caroto [2023] NZDC 5981 (12 April 2023), Judge Clark addressed the issue of rent rebates in circumstances involving technical breaches. The judge referred to prior decisions, including Johnson v Clements [2022] NZDC 20805, 28 October 2022 and [NAME_11] v [NAME_16] & [NAME_17] as Trustees of the Impala Trust [2019] NZCA, which highlight the importance of considering both the nature of the breach and the benefit received by the tenant during the tenancy when determining whether a rent rebate is appropriate.

72. In Johnson v Clements (2022), Judge Clark summarised the approach to determining "special circumstances" in rent rebate claims, referencing the [NAME_11] v [NAME_16] case, where the Court of Appeal emphasised that section 137 RTA should not be applied too rigidly. In [NAME_11] v [NAME_16], the Court rejected a blanket approach of refunding all rent paid during a tenancy due to a landlord's breach, particularly when the premises were otherwise compliant and habitable. [ADDRESS] reasoned that such an approach would result in unfair outcomes, such as penalising landlords for minor breaches that did not substantially affect the tenant’s enjoyment of the premises.

73.Judge Clark adopted this approach in subsequent decisions, such as Ting Han Chen v Ashok Kumar [2022] NZDC 7783 (16 May 2022) and Kemp v Elliot [2022] NZDC 17792, where the breaches were found to be technical but did not render the premises unsafe or unsuitable for habitation. In both cases, the tenants were provided with premises that were compliant with health and safety standards, and the breaches were related to specific, minor issues, such as lack of building consents or incomplete certifications. In these cases, the award of rent rebates was reduced to reflect the fact that the tenants still received significant benefit from the premises, despite the technical breaches.

74.Similarly, in Exclusive Estates Limited v Hoffman [2022] NZDC 25495, Judge Clark noted that the premises involved had all necessary consents, including a code compliance certificate, and were compliant with modern building standards. In these circumstances, the Court reduced the refund to reflect the fact that, while the premises were technically non-compliant, they were safe, habitable, and met the expectations of a healthy home. The amount of the rent rebate was set at $1,500.00, reflecting the overall benefit the tenant received, despite the breach.

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75. In considering the current case, I find that the breach in question is also technical, as the premises were consented for residential use and were otherwise safe and sanitary. While there were some issues, such as fire safety requirements not being fully met, the premises remained warm, dry, and suitable for residential occupation. The tenant lived in the property without significant complaint or detriment. Given these circumstances, I agree with Judge Clark's reasoning in [NAME_19] v [NAME_20] that the focus should be on the nature of the breach and the benefit received by the tenant.

76.Taking into account the total amount of rent paid and the benefit the tenant received, I believe a rent rebate is justified. However, it should not be punitive or disproportionate. Reflecting the approach in [NAME_19] v [NAME_20], and considering the technical nature of the breach, I find that a rent rebate of $1,500.00 is appropriate. This amount reflects both the unlawful nature of the premises and the tenant's benefit of the property, which was otherwise safe and compliant.

77. I also award $73.26 for costs incurred to obtain the Auckland Council property file as part of the tenant’s effort to prove the property’s unlawfulness.

Bond issues

78.The RTA establishes clear obligations for landlords, particularly regarding the handling of bond payments. Section 19 RTA sets out the requirement for lodging bonds for standard residential tenancies, while section 66D applies specifically to boarding house tenancies. Under the RTA, landlords must lodge tenant bonds with [COMPANY_6] within 23 working days of receiving the bond.

79. In this case, the landlord failed to comply with the statutory obligation to lodge the tenant’s bond within the prescribed timeframe. The tenant asserts that the bond was paid on 5 January 2022, but Ministry of Business, Innovation, and Employment (MBIE) did not confirm receipt until 27 February 2022, well beyond the statutory deadline of 8 February 2022.

80.Despite the property manager admitting to the delay, this failure does not absolve the landlord of liability under the RTA. Landlords are expected to have proper systems in place to ensure compliance with the law, especially when managing significant financial transactions like bond payments. The delay in lodging the bond reflects a failure to adhere to statutory duties and undermines the legislative goal of protecting tenant funds.

81.Exemplary damages under section 109 of the RTA are warranted in this instance because the failure to lodge the bond constitutes an unlawful act under section 19(2). While the breach appears intentional, as the property manager has acknowledged their failure, there is no evidence of a history of similar violations by this landlord. This justifies awarding exemplary damages at the lower end of the

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scale. I find $200.00 to be an appropriate amount, as it recognises the seriousness of the breach while accounting for the absence of prior offending.

82.Regarding the issue of whether the tenant was provided with a receipt for the bond, the evidence is inconclusive. The tenant claimed no receipt was given when the bond was submitted on 5 January 2022, but the tenancy agreement signed on 8 January 2022 includes a signed acknowledgment of the bond. Without corroborating evidence, this part of the tenant’s claim cannot be substantiated and is dismissed.

83.Lastly, regarding the refund of the bond at the end of the tenancy, the tenant’s concerns about the bond’s release are valid. However, the landlord is entitled to file a cross-application for the bond if there are disputes regarding its release. The process set out under the RTA allows for resolution of such disputes through the Tenancy Tribunal, ensuring both parties have an opportunity to present their positions. The landlord’s claims against the bond will be addressed below.

Contents of tenancy agreement

84.The RTA imposes specific obligations on landlords of boarding houses to ensure that tenants receive adequate information about their tenancy and the rules governing their residence. These obligations are intended to protect the interests of tenants, who are often in more vulnerable housing situations, and to promote transparency and safety in boarding house tenancies.

85.The tenant alleges that the landlord failed to comply with section 66C(1) RTA, which prescribes the mandatory contents of a boarding house tenancy agreement. The deficiencies in the agreement included the absence of crucial details such as the intended duration of the tenancy, the room number, whether the room was shared, the maximum number of occupants, the nature of the tenancy (individual or joint), services provided by the landlord, and fire evacuation procedures. The landlord does not dispute these omissions but argues that it mistakenly believed the tenancy was a standard residential tenancy rather than a boarding house tenancy. However, this misunderstanding does not absolve the landlord of its obligations under the RTA. Once the Tribunal determined that this was a boarding house tenancy, the landlord’s non-compliance became an unlawful act under section 13A(1A) RTA.

86.For an award of exemplary damages under section 109(3) RTA, the Tribunal must consider whether the unlawful act was intentional and whether an award would be just in light of the intent, the effect of the breach, the interests of the tenant, and the public interest. While the landlord’s intention was not malicious, it is clear that the omission of mandatory details was deliberate in the sense that the landlord chose not to comply with its obligations, albeit due to a mistaken belief. The failure to

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provide a compliant tenancy agreement undermines tenant rights and increases the risk that tenants are left uninformed about essential aspects of their tenancy. This is especially concerning in boarding houses, where tenants may be more vulnerable and reliant on clear information to navigate their rights and obligations.

87. It is in the public interest to incentivise landlords to comply with boarding house tenancy provisions. These provisions are not optional and serve as critical safeguards for tenants. Non-compliance diminishes the effectiveness of the statutory protections and erodes tenant confidence in the boarding house sector. Taking these factors into account, exemplary damages are justified. While the landlord’s intent was not malicious, the breach was serious enough to warrant a penalty, and I assess exemplary damages at $200.00.

Unenforceable clauses in tenancy agreement

88.The tenant has raised concerns regarding several conditions in the tenancy agreement, asserting that they are unenforceable. Under section 11, any provision in a tenancy agreement that is inconsistent with the RTA, or that seeks to exclude, modify, or restrict its application, is of no effect unless expressly permitted by the RTA or if the Tribunal deems it appropriate given the circumstances of the case.

89.Upon review, it appears that most of the conditions in question are standard provisions typically found in tenancy agreements and do not appear to conflict with the core provisions of the RTA. The conditions do not seem to defeat or evade the operation of the Act’s key protections, such as the tenant’s rights to quiet enjoyment, maintenance of the premises, or other fundamental protections granted by the RTA.

90.Section 11(1) RTA provides that any clause in a tenancy agreement that purports to exclude or modify the application of the RTA is only enforceable if it is expressly permitted by the Act or if the Tribunal is satisfied that, considering the nature of the tenancy, the parties’ interests, and the circumstances, the modification should be allowed. In this case, there is no indication that the conditions in the tenancy agreement fall outside these guidelines or are inconsistent with the statutory requirements of the RTA.

91. The tenant has not provided sufficient evidence that any of the conditions in the agreement undermine the protections offered under the Act. Moreover, as per section 137, the Tribunal does not find any grounds to award exemplary damages in this situation.

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Landlord’s obligations at the start

92.The tenant also alleges that the landlord failed to meet obligations under section 66H(1) RTA, which requires the landlord to provide tenants with a copy of the house rules and a list of services not included in the rent and their associated costs. Additionally, section 66I(1) RTA obligates landlords to display house rules and fire evacuation procedures and to ensure that house rules are enforced fairly and consistently. The landlord again does not dispute these allegations but claims that reasonable steps were taken to ensure the safe and smooth running of the boarding house.

93.While the landlord’s efforts to maintain the premises are noted, they do not excuse the failure to meet specific statutory requirements. Providing and displaying house rules and fire evacuation procedures are not merely formalities; they are critical for ensuring tenant safety, fostering a clear understanding of expected conduct, and reducing disputes. The failure to comply with these obligations not only inconveniences tenants but also compromises their safety and security.

94.The Tribunal finds that the landlord’s non-compliance with these provisions was significant. However, given that the landlord made efforts to manage the property effectively despite these failings, I do not find it necessary to impose additional penalties. Nevertheless, the landlord is reminded that compliance with sections 66H(1) and 66I(1) RTA is mandatory, and future breaches may attract more severe consequences.

Quiet Enjoyment and Privacy

95.A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 66G(2) RTA.

96.Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 66G(4) and Schedule 1A RTA.

97.The tenant presents multiple concerns relating to unlawful entry, breach of quiet enjoyment harassment, privacy and breaches of the tenancy agreement, citing substantial evidence supporting his claims.

98.A number of the submissions are repeated or intertwined. The tenant argues these claims collectively highlight the property manager’s actions, including unlawful entry, poor management practices, and lack of professionalism, resulted in substantial harm and violations of his rights as a tenant.

99.The tenant argues that the personal effects of the harassment they experienced, including neglect, poor hygiene standards, and security concerns, caused significant emotional and financial distress. They provide evidence, including doctor’s certificates, a counsellor's letter, team leader statements, and photographic/video evidence, to support their claims. The tenant asserts that the

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neglect and mistreatment by the property manager made the living situation untenable, impacting both their personal well-being and professional life.

Failure to prevent breach of quiet enjoyment by other tenants

100. The tenant asserts several claims regarding their experience at the property and the property manager's handling of the situation.

101. The tenant repeatedly expressed dissatisfaction with the cleanliness and disruptions in the communal areas of the property, arguing that these issues interfere with his right to "quiet enjoyment" under the RTA which guarantees tenants the right to live undisturbed. The tenant insists that despite their attempts to address the situation with the property manager and the other tenants, the issues continued and the property manager failed to take sufficient action to resolve the problems. The tenant feels that the ongoing uncleanliness and disruptions were undermining their entitlement to a peaceful living environment.

102. The property manager disputes the tenant’s claims and believes he has taken reasonable steps to address the tenant’s concerns and prevent breach of his quiet enjoyment by other tenants. He says he always takes an active and positive approach by first acknowledging the situation and making suggestions as to how the tenants themselves should resolve the issue.

103. He says he initiated efforts to address concerns by organising a meeting among the tenants, hoping it would lead to a positive outcome through cooperation. Following this, the property manager emphasised that maintaining cleanliness was a shared responsibility and suggested the creation of a cleaning roster. He offered the tenants the choice of organising the roster themselves or having him create one on their behalf. Throughout, the property manager stressed the importance of communication and teamwork to resolve the issue and prevent further tension among the tenants.

104. The property manager encouraged the tenant to work together with the other tenants, making the point that individual actions can create conflict, which is not helpful for resolving the problem. They also suggest that the problem might escalate if not addressed collectively.

105. Under the RTA specifically the provisions related to boarding house tenancies, the landlord has a responsibility to ensure that tenants’ rights to quiet enjoyment are respected and that the property is maintained in a reasonably habitable condition. The property manager took steps to facilitate communication among the tenants and encouraged them to work together to address the issues. The suggestion of a cleaning roster is reasonable in the context of shared accommodation, as it provides a clear framework for resolving disputes about cleanliness and maintenance in communal areas. The property manager also

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attempted to mediate by reaching out to all tenants collectively and individually, encouraging cooperation to maintain an acceptable standard of living.

106. However, while the property manager took reasonable steps in encouraging a cooperative solution, I acknowledge that the tenant felt that these efforts were not enough to directly address their concerns, especially if the issues were recurrent and disruptive. The property manager's reliance on the tenants to resolve the issue among themselves, without direct intervention or stronger enforcement of standards, likely contributed to the tenant’s frustration.

107. The tenant’s tone in his communication with the property manager is frustrated and assertive, as he expresses dissatisfaction with the lack of action on the property manager’s part. In his email sent on 15 September 2022, the tenant accuses the property manager of stonewalling and failing to act promptly, emphasising that he had tried to address the situation months earlier but did not receive adequate support. The tenant’s approach is firm in holding the property manager accountable, stating that the responsibility to ensure a habitable environment lies with the landlord, not the tenants.

108. Although the tenant appears polite in his correspondence, there is a sense of frustration and disillusionment with the process. The repeated references to stonewalling and the use of terms like “disappointed” and “embarrassing” suggest that the tenant feels that the property manager has not taken his concerns seriously or acted with enough urgency.

109. From the property manager’s perspective, the tenant’s tone could be seen as somewhat confrontational and persistent, which might be perceived as unhelpful. The reference to the Tenancy Tribunal may further suggest that the tenant feels their concerns have not been addressed adequately through informal channels. The emphasis on a “filthy place” and the reference to maggots as a recurring issue could also be interpreted as an exaggeration of the problem, which might make it more difficult for the property manager to gauge the severity of the situation.

110. In my overall assessment, the property manager made reasonable efforts to address the issue of cleanliness, encouraging a collective approach among the tenants and offering to create a cleaning roster. However, these efforts appear to have been insufficient for the tenant, who appeared to be seeking more direct intervention and quicker resolution. The tenant’s frustration is understandable given the persistent nature of the problem, but the tone of his emails, which can be perceived as aggressive or accusatory, may have hindered the collaborative problem-solving process.

111. The property manager’s suggestion of a roster and emphasis on communication is in line with best practices for managing shared living spaces, as set out in the Residential Tenancies Act and the framework for boarding house tenancies. I am not satisfied that the tenant’s ongoing dissatisfaction with the situation suggests that a more proactive approach might have been required. Nor am I satisfied that

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the evidence presented by the tenant especially of the cleanliness issues was of such severity impacting their enjoyment of the premises. It is also apparent from the evidence, that much of the disruption and issues at the property could be laid at the feet of the tenant. There were a number of complaints about his behaviour.

112. This was a boarding house. Of its nature, it will have an assortment of occupants, and, notoriously, there will be issues between them. Under the RTA a landlord must not permit any interference with the reasonable peace, comfort or privacy of a tenant and must also take all reasonable steps to ensure that house rules are observed and enforced in a fair and consistent manner.

113. In conclusion, on the evidence and in the circumstances, I find the landlord’s steps were generally reasonable under the RTA, despite having no actual house rules as such. The tenant’s tone and insistence on more immediate action and calling for the property manager to more forcefully enforce standards or intervene more directly in resolving the issue, while indicating a deeper frustration, has not been made out.

114. I am not satisfied that the tenant has made out this aspect of his claim.

Unlawful Entry 115. There were numerous allegations that the landlord entered the property without

notice but, for most part, this was evidence of entry into the shared facilities and a landlord has the right to enter the boarding house at any time: section 66Q RTA. Accordingly, even if the landlord would go to the premises unannounced, that is not unlawful.

116. But it is only a boarding room in respect of which a landlord’s rights are specifically limited: sections 66R and 66S. Under these sections a landlord can enter the boarding room with the consent of the tenant freely given at the time of entry, or after provided at least 24 hour’s notice.

117. In terms of allegations concerning unauthorised entry into the tenant’s room, the tenant cited an incident upon returning on 2 April 2023 after an absence, the tenant found that his room had been thoroughly searched, with items moved and no signs of forced entry. Given that the property manager is the only person with a key, the tenant suspects that the property manager entered his room during his absence, tampered with his belongings, and intentionally damaged his internet cable.

118. This was emphatically denied by the property managed who insisted that he always obtained consent first before entering a tenant’s room.

119. In determining this matter, the Tribunal cannot rely on speculation or assumptions, it must rely on objective evidence.

120. In cases where a tenant alleges unlawful entry, it is essential for the tenant to provide credible evidence to substantiate such a claim. While the tenant has raised

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a serious allegation regarding the landlord’s conduct, he has not presented independent or corroborative evidence to support his accusation. For example, there is no Police report or any third-party documentation, such as witness statements or other formal records, that could validate the incident he describes.

121. On the evidence, I find no established claims of unlawful entry by the landlord. This aspect of the tenant’s claim is therefore dismissed.

Breach of quiet enjoyment (harassment) by landlord

122. The tenant detailed various occasions when he said the landlord breached his quiet enjoyment:

• Unlawful Entry and Harassment: The tenant argues that the property manager repeatedly violated his right to enjoy the premises undisturbed. The tenant claims that the property manager entered the property without proper notice or consent, which contravened the tenancy agreement and the legal requirements set forth in the RTA. The tenant highlights emails from 3 March 2022 and 18 January 2023, in which the property manager acknowledged the necessity of providing notice for each visit, but failed to comply with these requirements.

• Improper Utility Charges: The tenant asserts that the landlord's practice of splitting utility costs evenly among tenants, regardless of individual consumption, breaches the RTA and the tenancy agreement. According to the tenant, the tenancy agreement specifies how utilities should be managed, and the practice of dividing costs equally violates the principles of fairness and transparency, causing undue financial burden.

• Work Disruptions: The tenant claims that the property manager’s repeated interruptions during work hours, including unsolicited communications, caused significant disruption to his professional life. The tenant presents evidence such as emails and work statistics to support the argument that these disruptions hindered their work performance and caused undue distress, further contributing to his difficulties during the tenancy.

• Breakdown of Communication and Dereliction of Duty: The tenant contends that the property manager’s failure to communicate effectively and neglect in addressing tenant concerns exacerbated the situation. Evidence of ignored correspondence, both in emails and texts, is cited to demonstrate the property manager’s disregard for their responsibilities. The tenant argues that this neglect compromised the relationship between the tenant and the property manager, making the living situation more difficult.

• Fostering Tensions Among Tenants: The tenant claims that the property manager’s lack of transparency and unprofessional behaviour created tensions among tenants. Disputes arose due to undisclosed arrangements

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involving certain tenants, which led to confrontations, including threats of violence, verbal abuse, and damage to personal belongings. The tenant provides emails and police reports to support the claim that the property manager’s actions heightened tensions and fostered an atmosphere of mistrust.

• Bond Dispute and Good Faith Concerns: The tenant questions the landlord’s commitment to good faith dealings in the bond dispute. Despite clear guidelines under the Residential Tenancies Act, the landlord continued to dispute the bond, leading the tenant to question their intentions and fairness in handling the bond refund process.

123. It is apparent that the tenant found the behaviour of the landlord both unacceptable and frustrating, but this is not, and itself, sufficient to establish a claim of breach of quiet enjoyment or breach of reasonable peace, comfort or privacy of the tenant.

124. Exemplary damages are not available, in any event, unless the actions of the landlord amount to harassment.

125. The law requires a high threshold to establish harassment. Harassment, as clarified in MacDonald v Dodds (CIV-2009-[PHONE], District Court Hamilton, 26 February 2010), involves conduct that “troubles, worries, or distresses” or “wears out, tires, or exhausts,” and must demonstrate a pattern of behaviour directed at the tenant. Isolated incidents or general dissatisfaction with the landlord’s conduct do not suffice.

126. Upon reviewing the evidence and submissions, I find that the tenant has not established his claims to the required standard. While the landlord’s actions may have been frustrating for the tenant, they do not meet the legal threshold for harassment. The claims of unlawful entry, fostering tensions among tenants, improper utility charges, and work disruptions, while concerning, lack sufficient evidence to substantiate that they amounted to harassment or a breach of quiet enjoyment under the RTA. Similarly, the bond dispute and communication issues, though indicative of a breakdown in the landlord-tenant relationship, do not constitute harassment or intentional conduct designed to distress the tenant.

127. The RTA provides tenants with rights to peace, comfort, and privacy; however, not all landlords conduct that inconveniences tenants constitutes a breach. In this case, while some aspects of the landlord’s behaviour may have fallen short of ideal professional standards, they do not amount to harassment.

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Privacy

128. Under section 66G(2) RTA, a landlord must not unreasonably interfere with the privacy of a tenant in their use of the premises. This obligation must be considered in light of the Privacy Act 2020, which establishes principles governing the disclosure of personal information, including that such information should only be disclosed for the purpose for which it was collected and only when necessary. This aligns with the broader principle of respecting an individual’s privacy and ensuring that information is not disclosed without their consent unless there is a legitimate reason for doing so.

129. While the Tenancy Tribunal does not have jurisdiction to enforce the Privacy Act, its principles are relevant to assessing whether a landlord’s actions constitute an unreasonable interference under section 66G(2).

130. The tenant alleges that the property manager breached his privacy by forwarding his private emails to other tenants without consent, particularly after he had explicitly objected to this practice on 20 February 2023. The tenant claims that the property manager repeated this behaviour on 7 March 2023 and possibly in earlier instances, albeit using a blind carbon copy (BCC) to conceal recipients. The tenant’s reliance on Privacy Principle 11 highlights the concern that the disclosure of personal information—specifically the emails—was not necessary and occurred without consent.

131. The landlord’s defence hinges on the claim that the tenant had caused significant friction within the boarding house, by being demanding, aggressive, and abusive towards other tenants. In response to the complaint, the landlord argues that the forwarding of emails to other tenants did not constitute a breach of privacy, as the other tenants were already aware of the tenant’s complaints. The implication here is that the disclosure of the tenant’s emails was not harmful or unreasonable, as it merely shared information already known to others.

132. In this case, the landlord’s disclosure of the tenant’s emails to other tenants appears to have been aimed at resolving disputes within the boarding house, which is considered a legitimate purpose. However, the landlord’s method of disclosure raises concerns. Ideally, the landlord should have conveyed the substance of the tenant’s complaints to other tenants without forwarding the tenant’s exact emails or revealing their identity, thereby minimising any potential breach of privacy. Sharing such emails verbatim, particularly after the tenant explicitly objected, was unnecessary and could reasonably be perceived as an interference with the tenant’s privacy.

133. That said, the degree of interference must be assessed in context. The Tribunal finds that the disclosure, while not ideal, constituted a minor infraction. The landlord’s actions were related to the legitimate purpose of addressing boarding house disputes, and there is no evidence of malicious intent or significant harm caused by the disclosure. The landlord’s actions may have fallen short of best

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practices under the Privacy Act guidance for landlords, but they do not rise to the level of an unreasonable interference with privacy under section 66G(2) RTA.

134. In conclusion, the Tribunal finds that the tenant’s claim of a breach of privacy under section 66G(2) has not been established. The landlord’s actions were connected to the legitimate purpose of managing disputes within the boarding house, and despite the lack of adherence to the best privacy practices, no significant harm was caused. The claim is therefore dismissed.

Landlord’s ongoing obligations

Failure to maintain (plumbing/sewage in master ensuite)

135. The tenant alleges that the landlord failed to address a persistent sewer smell in the master bedroom bathroom, which significantly affected his quiet enjoyment of the property. The tenant claims the smell existed from the start of their tenancy on 8 January 2022, and asserts that despite repeated reports, the landlord did not adequately resolve the issue. On 16 January 2023, the tenant issued a 14-day notice to remedy the problem, claiming the landlord had been aware of the smell for eight months but failed to act effectively. The tenant subsequently engaged a plumber from [COMPANY_21], who identified a defective “easy clean” shower waste as the likely source of the smell. The plumber recommended replacing the shower waste, providing a quote for the work. The tenant seeks reimbursement for his plumbing expenses and a rent reduction, arguing that the landlord breached his obligations under the RTA.

136. The landlord disputes the tenant’s claims, asserting that the sewer smell was first reported on 25 February 2022, over a month after the tenant moved in. The landlord contends there were no complaints from the previous occupant about the issue. In response to the tenant’s report, the landlord inspected the bathroom on 28 February 2022, cleaned the wastes, and applied baking soda and vinegar to address potential odour sources. The landlord arranged for [NAME_22] to investigate the issue in January 2023 after the 14-day notice was issued. Abbots identified the absence of a shower trap and suggested improper use by the tenant, including failure to maintain water levels in the trap. The landlord maintains that they acted reasonably and promptly to address the issue, including seeking professional assistance, and attributes the problem to tenant misuse. They do not agree to reimburse the tenant or provide further rent reductions and seek reimbursement for the $180.00 paid to [NAME_22].

137. Under section 66(1)(b) of the RTA, a landlord in a boarding house tenancy is required to ensure the premises are maintained in a reasonable state of repair and fit for occupation. This includes addressing maintenance issues that could compromise the tenant’s quiet enjoyment. However, tenants also have a responsibility to use the premises reasonably and not cause damage.

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138. After considering the submissions and evidence, I find that the landlord took reasonable steps to investigate and address the reported issue. The landlord responded promptly to the tenant’s initial report, conducted inspections, and engaged professional services from [NAME_22]. [COMPANY_21] recommended replacing the shower waste, this recommendation was not conclusive evidence of a structural defect attributable to the landlord. The issue appeared to stem from a combination of wear and tear and tenant use, as noted by Abbots. There is no evidence that the landlord failed to meet their obligations under section 66(1)(b).

139. The tenant’s claim for a rent reduction and reimbursement of plumbing costs is not upheld. The landlord’s actions were consistent with their obligations to maintain the premises, and the evidence does not demonstrate that the landlord failed to provide premises fit for occupation. Furthermore, the landlord’s request for reimbursement of the $180.00 paid to Abbots is also declined, as there is insufficient evidence to attribute the problem solely to tenant misuse.

Failure to ensure other tenants maintain cleanliness of kitchen/premises

140. A boarding house landlord has to ensure that the facilities of the premises are in a reasonable state of cleanliness (section 66I(1)(a) RTA). The facilities included general living, dining or recreational areas (section 66B, definition "facilities").

141. I am not satisfied that the landlord was remiss in its responsibilities in this matter. Given the conflicting views and lack of corroborating evidence (generally more specific evidence), I do not find a breach of the landlord’s obligation ensure the other tenants maintain the property in a reasonable state of cleanliness. I consider the landlord has been reasonably responsive with addressing any problems when they have arisen.

142. I also accept there will be periods where rubbish etc will be left but the landlord’s best endeavours to encourage the tenants to implement a cleaning regime is considered reasonable.

143. I note the tenant tried to get the landlord to set the standard for cleaning, but I agree with the landlord this is not feasible or possible given people have different standards. Generally, the applicable standard in rental properties is to a reasonable clean standard.

Healthy homes heating standard

144. The tenant claims the landlord failed to comply with healthy homes heating standards (s 66I(bb) RTA. Under the RTA and the Healthy Homes Standards (HHS), all boarding houses were required to comply with the HHS, including the heating standard, by 1 July 2021. The heating standard requires landlords to

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provide one or more ‘qualifying heaters’ in the main living area, with a capacity to heat the room to a required level. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (Schedule 1A RTA).

145. The tenant, whose tenancy began on 8 January 2022, raises a valid argument that the landlord failed to meet the required standard within the prescribed timeline and within the additional 90-day compliance period for new tenancies, which ended on 8 April 2022.

146. The tenant provided photographic evidence suggesting that heaters and a heat pump were missing as of February 2022, despite the landlord’s earlier claim of compliance. The landlord, while acknowledging the delayed installation of the heat pump, attributed the delay to supply chain issues. While supply chain disruptions may constitute a mitigating factor, it does not absolve the landlord of their legal obligation to ensure compliance within the prescribed timeframe. The delay extended well beyond the 90-day period after the commencement of the tenant’s occupancy, which ended on 8 April 2022.

147. Furthermore, under the HHS heating standard, landlords are required to provide one or more fixed heating devices capable of maintaining the main living room at a minimum temperature of 18°C. The tenant’s claim that no fixed heating was available until sometime after April 2022 indicates a clear breach. This breach is compounded by the landlord’s tenancy agreement, which stated their commitment to comply with the Healthy Homes Standards, demonstrating their awareness of the legal requirements.

148. The argument concerning the authenticity of the HHS documentation provided by the landlord is significant. If the landlord fabricated evidence to suggest compliance, this could undermine their credibility and constitute a breach of their obligation to deal with the tenant in good faith.

149. The tenant has requested exemplary damages, which are available under section 109 of the RTA for breaches deemed intentional.

150. The landlord breached the HHS by failing to provide fixed heating within the required timeframe. The tenant provided photographic evidence suggesting that heating devices were missing after the deadline for compliance, and the landlord did not fulfil their obligation despite acknowledging the delay.

151. Given the landlord’s clear knowledge of the requirements under the Healthy Homes Standards and the fact that they failed to ensure compliance by the statutory deadline, this constitutes a breach considered to be reckless or negligent. As such, exemplary damages are appropriate.

152. The maximum level of penalty available is substantial, I consider that the breach is at the lower end of the scale. I do not have any direct evidence about the effect of the breaches on the tenant, although it likely he had some effect particularly in

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the colder months. Apart from the tenant’s interests, there is also a strong public interest in ensuring compliance with HHS.

153. Taking into account the circumstances of the case, the Tribunal awards exemplary damages of $500.00 in recognition of the landlord’s failure to comply with the heating standard under HHS, and their responsibility to meet the legal obligations within the timeframe set by law.

Other obligations of landlord

Insurance statement

154. The tenant claims the landlord breached their obligations under sections 13A(2)(b)(i) and 66J(6)(a)(b) RTA by failing to provide updated insurance information in relation to the tenancy agreement. Section 13A(2)(b)(i) requires landlords to include a statement in the tenancy agreement regarding insurance information, while section 66J(6) imposes an obligation on landlords to provide tenants with updated insurance details if any changes occur. Failure to comply with section 66J(6) is an unlawful act, exposing landlords to potential liability for exemplary damages under section 109 of the Act.

155. In this case, while the tenancy agreement included outdated insurance details, the landlord acknowledged that insurance cover had been continuous, and that updated information was available upon request. However, the landlord did not take proactive steps to provide the tenant with the updated information when changes to the insurance occurred, as required by section 66J(6). This provision imposes a clear and ongoing obligation on landlords to provide tenants with updated information without the need for a specific request. By failing to provide the tenant with the correct insurance details when the information changed, the landlord breached their statutory duty under the RTA.

156. To determine whether exemplary damages should be awarded, the Tribunal must consider whether the breach was intentional and whether it would be just to impose such damages. Section 109(3) RTA requires the Tribunal to take into account the landlord’s intent, the effect of the unlawful act, the interests of the tenant, and the public interest in ensuring compliance with the law.

157. In this case, while the landlord’s actions do not appear to have been malicious, their failure to comply with section 66J(6) demonstrates a lack of diligence in meeting statutory obligations. The tenant relied on the landlord to provide accurate and up-to-date insurance information, which is critical to understanding their rights and potential liabilities. The omission caused confusion and uncertainty for the tenant, highlighting the importance of the landlord’s duty in this regard. Moreover, there is a strong public interest in ensuring that landlords comply with their obligations, as tenants are entitled to full and accurate disclosure of insurance information to protect their interests.

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158. Given these factors, the Tribunal finds it appropriate to award exemplary damages to reflect the seriousness of the breach and incentivise future compliance. However, as the landlord’s actions were not intentional or egregious, a modest award is warranted. The Tribunal awards exemplary damages of $200.00.

Interference with utilities (internet)

159. The tenant alleges that the landlord breached section 66J(1) RTA by interfering with internet services at the premises. Section 66J(1) prohibits landlords from interfering with the supply of utilities, including “other services,” unless the interference is necessary to avoid danger or enable maintenance or repairs. In this case, the tenant raised multiple issues regarding the internet, including disruption caused by a heat pump installation, challenges over managing the internet service, and a lack of direct communication with the property manager. The landlord denies the allegations, asserting that the disconnection was accidental and temporary and that their actions were aimed at reaching a collective arrangement for internet services among the tenants.

160. The first incident, where internet access was disrupted during the installation of a heat pump, involved a brief disconnection. The landlord’s acknowledgment of this accidental disruption aligns with section 66J(1), which allows for necessary interruptions for maintenance or repairs. There is no evidence to suggest that the disconnection was deliberate or unreasonable, and the landlord offered compensation for any potential inconvenience.

161. Regarding the broader issue of internet management, the tenant’s refusal to participate in the collective agreement for internet services created complications. The landlord made reasonable efforts to arrange a shared service and communicated options to the tenant. Section 66J(1) does not obligate the landlord to provide internet service or accede to a tenant’s specific demands for setup or management. The tenant’s insistence on unilateral control over the service goes beyond the scope of the landlord’s obligations under the Act.

162. The tenant also alleged deliberate interference with their internet connection by the property manager. However, this claim is not substantiated by clear evidence. While there were tense interactions, the landlord’s actions appeared to focus on resolving disputes and facilitating a workable arrangement for all tenants rather than obstructing the tenant’s access to the service. Claims of harassment and vandalism fall outside the specific scope of section 66J(1) and require separate consideration.

163. In conclusion, there is no sufficient evidence to establish a breach of section 66J(1) by the landlord. The interruptions cited by the tenant were either incidental to maintenance work or arose from disputes over internet management, which the landlord addressed in a reasonable manner. The landlord’s efforts to facilitate a

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shared internet service demonstrate an intent to meet their obligations, and the lack of agreement was due to the tenant’s resistance to the proposed terms. Accordingly, I find no breach of section 66J(1) RTA.

Loss of amenity in relation to carparking

164. After careful consideration of the evidence and arguments presented, I find that the tenant has not sufficiently proven their claim of a loss of amenity related to car parking.

165. The tenancy agreement does not explicitly include the provision of a designated car parking space. In the absence of written confirmation, any verbal understanding or historical use is difficult to enforce legally. The tenant’s belief that the parking space was designated for their exclusive use appears to be based on informal discussions and their practice of using the same space during the tenancy. While the tenant may have genuinely believed in this arrangement, such an understanding lacks legal foundation if not supported by the written tenancy agreement.

166. The evidence presented, including the audio recording of a house meeting, suggests that the property manager indicated no exclusive rights to parking spaces were assigned. Instead, early tenants were allowed to assume spaces that were available at the time of moving in. This reinforces the notion that car parking was treated as a shared amenity, subject to informal agreements among tenants. The landlord’s reliance on tenants to resolve disputes regarding parking may have led to misunderstandings, but it does not constitute a breach of the tenancy agreement.

167. The tenant’s claim of a loss of amenity must be assessed in terms of whether the landlord’s actions significantly impacted the tenant’s reasonable use and enjoyment of the property. While a change in the landlord’s stance on parking arrangements may have caused inconvenience, there is no evidence of financial loss or a substantial breach of the tenant’s rights. The absence of a clear and enforceable agreement regarding car parking limits the tenant’s ability to establish that a loss of amenity occurred.

168. In legal terms, tenancy agreements are binding based on their written terms. Verbal assurances or informal arrangements hold little weight unless corroborated by the agreement itself or other enforceable evidence. Furthermore, shared living arrangements often involve communal use of spaces, including parking, unless otherwise specified. Without clear rules or documentation, disputes over shared amenities are challenging to resolve in favour of one party.

169. For these reasons, I conclude that the tenant’s claim has not been proven on the balance of probabilities. The evidence does not establish that the tenant had an exclusive right to the car parking space or that the landlord’s actions amounted to a breach of the tenancy agreement. The legal framework supports the landlord’s

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position in this instance, as there is no enforceable obligation to provide the tenant with a designated parking space. Accordingly, the tenant’s claim is dismissed.

Unlawful termination and retaliatory notice

170. In this case, the tenant has raised two main issues under RTA: unlawful termination and retaliatory notice by the landlord.

171. Section 60AA states that a landlord commits an unlawful act if they issue a notice or apply to the Tribunal for termination knowing they are not entitled to do so. The tenant claims that the landlord issued a termination notice despite knowing they were not entitled to do so. However, based on the evidence presented, it appears the landlord had valid grounds to issue such a notice due to multiple complaints from other tenants regarding the tenant’s behaviour.

172. Under section 55A, a landlord may apply to the Tribunal for termination of a tenancy on the grounds of anti-social behaviour. The landlord was entitled to take action if the tenant’s behaviour was causing significant disruption to the peace and comfort of other tenants. It is noted that the landlord followed the correct procedure in issuing the three anti-social behaviour notices, although the third notice was issued close to the expiration of the 90-day period. While the timing of the third notice may seem questionable, the incidents cited in the notice were substantial enough to justify the landlord’s actions.

173. Regarding the issue of retaliatory notice, the tenant argues that the landlord’s actions were in retaliation for the tenant exercising their rights. However, the Tribunal finds no evidence that the landlord’s actions were motivated by the tenant’s legitimate exercise of their rights. The landlord was acting on complaints received from other tenants about the tenant’s disruptive behaviour. There is no indication that the landlord’s actions were aimed at punishing the tenant for exercising their rights under the tenancy agreement or the law. Therefore, the claim of retaliatory notice does not stand.

174. The tenant has also claimed that the landlord’s actions caused undue stress and harassment, which contributed to the breakdown of the tenancy. However, the evidence suggests that the landlord was responding to legitimate complaints about the tenant’s behaviour, which is within their rights. While it is clear that the tenant experienced stress due to the situation, the Tribunal finds that the landlord acted in accordance with the law and had valid grounds for issuing the notices and applying to the Tribunal for termination. This claim is therefore dismissed.

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THE LANDLORD’S APPLICATION

Rent arrears

175. The tenancy ended on 3 June 2023. The landlord seeks payment of $399.99 in rent arrears to the end of the tenancy.

176. I am mindful of the provisions of section 78A and the prohibition on making an award for rent arrears against the tenant, unless having regard to the special circumstances of the case, it would be unjust not to make the order.

177. Despite my finding that this premises was an unlawful one for largely technical reasons, I do not consider there are special circumstances justifying the making of such an order for rent arrears.

178. The tenant did not have the use of the premises for the period the landlord seeks arrears for, and this situation was the result of the ongoing dispute between the parties. Section 78A carries a presumption that rent arrears will not be ordered unless the interests of justice require it. I consider that awarding rent arrears would be inappropriate in this case and the application is declined.

Power and Internet charges

179. The landlord claims $1,004.01 in unpaid power charges and $110.16 for internet charges, while the tenant disputes liability.

180. The tenant argues that there were misleading or ambiguous statements in the tenancy agreement about outgoings. The tenant states that power charges were split evenly among all tenants without a separate meter for his room or the ability to distinguish individual usage. The tenant has already paid $461.39 towards power bills, which he claims cannot be exclusively attributed to him. Similarly, internet charges were shared equally among tenants.

181. Section 39(3) RTA specifies that tenants are responsible for outgoings that are exclusively attributable to their occupation of the premises or their use of the facilities. This includes electricity, gas, and internet charges. However, if the premises lack separate meters or systems for determining individual consumption, the charges cannot be directly or exclusively attributed to a specific tenant. Furthermore, fixed charges (such as network or line fees) are not the responsibility of tenants because they are not linked to individual usage (see section 39(4) RTA).

182. Section 11(1) RTA voids any agreement or arrangement inconsistent with the Act. This means any tenancy clause purporting to impose such charges on a tenant where consumption cannot be individually determined would not be enforceable. However, the Tribunal is also required to consider section 85 RTA, which emphasises achieving a fair and just outcome. In Geraghty and Jones v Raui [2019] NZDC 3813, the District Court directed a rehearing because a strict application of section 39(3) might result in an unfair or unjust outcome. This case establishes that

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while tenants are not liable for shared utilities, they should not be entitled to a full refund if they benefited from those utilities.

183. In this case, the absence of separate meters or systems for determining individual usage means the tenant cannot be held liable for the specific power and internet charges claimed by the landlord, as they are not exclusively attributable to the tenant’s use. However, the tenant did derive some benefit from power and internet services during their tenancy. As such, it would be unfair to order a refund of the $461.39 already paid by the tenant for power (or any charges already paid by the tenant for the internet), as this reflects some contribution to shared usage.

184. The landlord’s claim for $1,004.01 in unpaid power charges and $110.16 for internet charges are dismissed due to the breach of section 39(3) RTA. The tenant’s request for a refund of $461.39 is also declined. This decision strikes a fair balance under section 85 RTA by recognising the landlord’s procedural failure and the tenant’s actual benefit from the utilities.

Lawn mowing charges

185. The landlord claims lawn mowing charges of $121.37. Given the conflicting views and lack of corroborating evidence this claim is dismissed.

Conclusion

186. In conclusion, the Tribunal recognises certain breaches by the landlord, particularly concerning statutory obligations under the RTA. These breaches resulted in a rent rebate and exemplary damages but do not support some of the tenant’s other broader claims of unlawful termination, retaliatory conduct, harassment, breaches of quiet enjoyment and privacy. Actions such as addressing cleanliness, maintenance issues and managing tenant disputes were reasonable in the boarding house context. This dispute underscores the importance of clear communication, adherence to statutory obligations, and a balanced approach to tenant-landlord relationships.

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Other matters

187. If there are any additional claims not explicitly addressed above, they have been thoroughly considered and found to lack sufficient evidence or merit. As such, they are deemed to be without substance and are hereby dismissed.

188. The landlord agreed by consent to reimburse the tenant for lightbulbs ($15.00) that were missing at the start.

189. The bond is refunded