Tribunal Awards Exemplary Damages for Lack of Heating

__________________________________________________________________________________ 5156999 1

[2025] NZTT 5156999, 5128648

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] As Agent For Man, Kin Foon $4,438.07 immediately, calculated as shown in the table below:

2. This order incorporates the Tribunal order made on 6 November 2024 under application 4962573.

Reasons:

1. Both parties attended the hearing on 2 April 2025.

2. The tenant has applied for exemplary damages for failure by the landlord to provide heating at the premises and refund of a heater bond.

3. The landlord has cross applied for rent and water arrears.

Description Landlord Tenant Rent arrears (12/11/2024-11/12/2025) $2,657.14 Previous order application 4962573 dated 06/11/2024 $3,985.71 Exemplary Damages: Failure to provide heater $2,000.00 Water rates to end of tenancy $15.22 Credit to tenant applied to rent after last hearing $220.00 Total award $6,658.07 $2,220.00 Net award $4,438.07 Total payable by Tenant to Landlord $4,438.07

__________________________________________________________________________________ 5156999 2

4. This tenancy began on 7 June 2024.

5. On 6 November 2024 the Tribunal made an order relating to this tenancy, for termination of the tenancy as at 11 November 2024 and rent arrears to 11 November 2024 and refund of the bond. After the bond refund the amount owed by the tenant is $3985.71.

6. The tenant applied for a rehearing on 7 November 2024 on the grounds that he has not been able to attend the hearing. The application for rehearing was dismissed by the previous Adjudicator on 10 November 2024.

7. The tenant filed an appeal on or about 15 November 2024 and this appeal was withdrawn on 16 January 2025. The order dated 6 November 2024 therefore remains in force.

8. The landlord advised that they have not begun enforcement of the order dated 6 November 2024 therefore it is incorporated into this order for enforcement purposes.

Tenant claims

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

10. Under section 45, a landlord has obligations including that the landlord provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, and health and safety.

11. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

12. The Tribunal may also award compensation for breaches under the Act.

13. The tenant claims that the landlord breached their obligations by failing to provide heating as agreed at the beginning of the tenancy. The heating was not installed until August 2024.

14. Landlords must comply with Healthy Homes Standards within 120 days of the commencement of a tenancy and in this case that occurred. However, the requirement to provide heating in homes predates the Healthy Homes Standards and has been a requirement for buildings since the 1947 Housing Improvement Regulations which sets out minimum standards of fitness for houses. The regulations state at clause 6 “Every living room shall be fitted with a fireplace and chimney or other approved form of heating.” Reference to this requirement is included in the information on the government Tenancy Services website which provides information to landlords and tenants.

__________________________________________________________________________________ 5156999 3

15. The tenant claims the following:

(a)Prior to the tenancy commencing he viewed the premises and observed that there was no heater. He stated that he was new to New Zealand and this was only his second winter in the country and heating was important to him.

(b)The tenant requested a heater and the landlord agreed.

(c)The landlord did not install a heater.

(d)On 2 August 2024 the [NAME] manager came to his premises to request rent arrears. He advised the [NAME] manager that he still had not received heating and that this was impacting on his use of the premises and he wanted his bond back and to end the tenancy. The tenant states that a conversation took place and the [NAME] manager requested a heater bond from him.

(e)The tenant made a payment of $200.00 on 8 August 2024 which records a reference on the bank transaction as heater. The tenant made a payment of $620.00 on 14 August 2024 which is recorded as heater/rent.

(f)On 15 August 2024 the tenant advised he was at home unwell due to a cold and the contractors came and installed a heat pump.

(g)The tenant seeks refund of the heater bond and compensation and/or damages for the failure to install the heater in a reasonable time frame.

16. In support of this claim the tenant provided proof of the payments made and a photograph of the heat pump once installed.

17. The landlord responded as follows:

(a)The landlord agreed that a heater was to be provided.

(b)A contractor was engaged and an invoice for the deposit was sent to the landlord on 18 June 2024.

(c)There were delays in completing the installation due to the contractor being unable to make arrangements with the tenant.

(d)The landlord did not have a record of attending the premises on 2 August 2024 but stated that he may have done this to discuss rent arrears. The landlord denies requesting a heater bond.

(e)The landlord stated that the heat pump was installed on 5 August 2024.

(f)The landlord stated that the payment of $620.00 which was marked both heater and rent was applied to rent on 14 August 2024. The payment of $200.00 marked only heater was held on deposit and applied together with a further $20.00 to the rent on 15 November 2024 after the previous Tribunal order.

18. In support of the defence the landlord provided a copy of the rent summary showing the application of the payments, a copy of the invoices from the

__________________________________________________________________________________ 5156999 4

contractor and a screenshot of a message which the landlord stated confirmed that the work was done on 5 August 2024.

19. The invoices from the contractor are dated 18 June 2024 and 5 August 2024 and each are for half of the cost of the heat pump.

20. The screenshot of the text message records that a work order was issued in July and that the contractor attended but the tenant was not home and then the work was completed on 5 August 2024.

21. The tenant disputed the text message on the basis that the landlord owns two adjoining properties, and the heat pump was installed in the other one first. The screenshot of the message does not identify which [NAME] is being referred to. The tenant denied receiving any messages from the contractor.

22. Having carefully considered the evidence and submissions of both parties I find that the landlord has breached the obligation to supply heating in the premises as required by the long-standing Housing Improvement Regulations for the following reasons:

(a) The premises were provided without heating.

(b) I accept the evidence of the tenant that he requested heating, and this was agreed to.

(c) The landlord agreed to provide heating as is evidenced by the first invoice dated 18 June 2024.

(d) There is no explanation for the delay between June and August before the heater was installed. The landlord stated that he believed this was due to the contractor not being able to make contact with the tenant, but this was disputed by the tenant and no supporting evidence was provided. The RTA has clear provisions regarding landlord right of entry to complete maintenance work and there is no evidence that notice of entry was given and refused.

23. For the above reasons I find that the landlord has committed an unlawful act.

24. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

25. The ongoing failure by the landlord to provide heating between June and August 2024 in the absence of any valid explanation I find was intentional. The effect of this unlawful act on the tenant was that the premises were cold during the winter months and his enjoyment of the premises was affected and he became unwell. It is in the public interest that landlords take seriously their obligations to provide and maintain warm premises as required by legislation. Having considered the factors in this case including that there is no evidence

__________________________________________________________________________________ 5156999 5

provided of a previous breach by the landlord I will treat this as a first breach and order the landlord to pay exemplary damages at the lower end of the scale in the sum of $2000.00.

26. There is insufficient evidence that the landlord required the tenant to pay a heater bond although I accept that the tenant understood he was paying one. Having considered the rent summary I am satisfied that any money the tenant understood he was paying for the heater has been applied to the rent.

Does the tenant owe rent and water arrears?

27. The landlord has cross applied for rent and water arrears.

28. A water invoice was sent to the tenant on 29 November 2024.

29. The tenant agreed to pay final water of $15.22 and this is ordered by consent.

30. The landlord sought rent arrears of $4871.43 from 12 November 2024 to 5 January 2025. The tenant disputes these rent arrears on the basis that he moved out of the premises on 11 November 2024.

31. The evidence relating to the end of this tenancy is summarised as follows:

(a)On 6 November 2024 the Tribunal made an order terminating the tenancy for rent arrears and terminated the tenancy as at 11 November 2024. The tenant did not attend the telephone hearing.

(b)On 7 November 2024 the tenant applied for a rehearing, and this was dismissed on 10 November 2024.

(c)The tenant advised that he telephoned Tenancy Services who told him that as his application for rehearing had been declined, he needed to move out. He advised that he moved out as ordered and removed as much of his goods as he could on 11 November 2024. He stated that he left the keys in the garage in the same place where they had been left for him at the beginning of the tenancy.

(d)The tenant did not notify the landlord that he had moved out. The landlord did not communicate with the tenant or visit the premises.

(e)The tenant filed an appeal on or about 15 November 2024. No stay was applied for or ordered on this appeal. The appeal was subsequently withdrawn on 16 January 2025.

(f)On 10 December 2024 the [NAME] manager messaged the tenant and asked “Hi [NAME], have you moved out from the [NAME]? We have not received the key yet?”. The tenant replied asking about refund of what he believed to be a heater bond he paid. He states “[NAME], You instructed me to pay the security bond for the installation of the heater unit, which I did. I honored on my part. Now that my tenancy has been terminated and the fact that I will never get my 1 month bond back, it is only fair and right for you to refund my money that you got me to pay

__________________________________________________________________________________ 5156999 6

for the heater”. The communication between the parties then turned to a discussion about the issue raised by the tenant. The tenant did not state where the keys were until a further email was sent to him on 3 January 2025 and he replied on 5 January 2025. For this reason the landlord is seeking rent to 5 January 2025.

32. Having considered the evidence I accept the tenant’s evidence that he vacated the premises on or about 11 November 2024. This is supported by the very low water bill on 29 November indicating there was no one resident in the premises. Although the tenant left the key in the premises, he did not notify the landlord of its location.

33. The landlord failed to inspect the premises until January 2025 once informed where the key was. The [NAME] manager advised that this was because it was a busy period and he was busy with other properties and unsure about the appeal.

34. Although an appeal had been filed there was no stay of proceedings.

35. The tenant has therefore honoured the obligation under section 40 (1)(c)(i) RTA to quit the premises upon termination but has breached the obligations on vacating the premises as required under section 40 (1)(c)(ii) and (iv) to remove all goods and return the keys to the landlord.

36. Where any party to a tenancy agreement breaches any of the provisions of the agreement or the Act the other party shall take all reasonable steps to limit the damage or loss arising from the breach pursuant to section 49 of the RTA.

37. Having considered the evidence of both parties I accept that due to the appeal the landlord may have initially been uncertain as to whether the tenant had vacated. However, the [NAME] manager had obtained a termination order, received no rent from the tenant after 30 October 2024, received a water invoice indicating very low water usage at the end of November, messaged on 10 December and the tenant replied referring to the termination and requesting bond money, and failed to investigate further and inspect the premises. I find that leaving the matter for over three weeks before further messaging the tenant and visiting the premises amounts to a failure to take reasonable steps to mitigate loss.

38. Accordingly, I order the tenant to pay rent arrears to 11 December 2024 in the sum of $2657.14.

__________________________________________________________________________________ 5156999 7

Filing fee

39. As both parties have had some success with their applications, I make no order regarding reimbursement of either filing fee.

[NAME]

22 April 2025

__________________________________________________________________________________ 5156999 8

Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or [NAME] this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your [NAME].

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

__________________________________________________________________________________ 5156999 9

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: