What was Tenancy Tribunal case 4282448 about?

The tribunal order states: The Tribunal orders suppression of the Witnesses [witness 1] and [[witness 2]

How much money was awarded in case 4282448?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4282448?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4282448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8610136-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4282448 about?

The tribunal order states: The Tribunal orders suppression of the Witnesses [witness 1] and [[witness 2]

How much money was awarded in case 4282448?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4282448?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4282448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8610136-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4282448 — Rent arrears

Order

The Tribunal orders suppression of the Witnesses [witness 1] and [[witness 2] names and identifying details including the tenancy address.
All claims that are identified in this decision as not having been proven are dismissed.

Reasons

This application relates to a tenancy which began on the 2014 and ended on the 16 April 2021. History.
There is a substantial history between the parties in the Tribunal. A summary of the key facts and orders is set out for the purpose of context.
On the 1 December 2020 Adjudicator Tam determined the premises to be Unlawful Premises pursuant to S78A of the Residential Tenancies Act and ordered the landlord to pay the tenant $29,500.00. He also terminated the tenant’s tenancy.
The tenant applied for a rehearing and stay of proceedings in respect of Adjudicator Tam’s decision.
The rehearing was heard on the 17 March 2021. Adjudicator Tam confirmed his determination that the property was an unlawful residential premise and his determination that the landlord had failed to insulate the premises. He granted the rehearing in respect of the remaining tenant claims stating: The application for rehearing is granted in respect of the tenant’s counterclaim for damages and exemplary damages for breach of quiet enjoyment, harassment, property damage, retaliatory notice by the landlord, failure to maintain, commission for work done to the landlord’s cabin, loss of use of storage unit and declaration against the landlord to “cease and desist from behaviour that would bring distress” to the tenant.
The tenancy was terminated by eviction by the bailiffs on the 16 April 2021.
After the eviction, the landlord allowed the tenant at times during the period 16 April to 4 May 2021 to come to the property and pack up her belongings and clean the property.
The matter was first heard by me on the June 2021, unfortunately due to the 2021 prolonged COVID lockdown these claims were unable to be set down for further hearing time. The parties have added claims since June 2021.
There were further hearings held on the 2 September 2022 (half day- morning), 18 July 2022 (half day afternoon), 10 November 2022 (2 full days) and 8 December 2022 (Half day morning). This means that I have had over 4.5 full hearing days of this matter.
There has been considerable evidence and submissions made by both parties. Whilst the Tribunal strives to ensure a quick turnaround of decisions, the length of time taken for this decision takes into account the Christmas leave break and is a reflection of the time taken to peruse the volume of material, notes of evidence and amount of claims that needed to be determined. The current claims to be determined. The tenant’s claims.
In his order dated 17 March 2021 Adjudicator Tam granted a rehearing for the tenant’s applications “ for damages and exemplary damages for breach of quiet enjoyment, harassment, property damage, retaliatory notice by the landlord, failure to maintain, commission for work done to the landlord’s cabin, loss of use of storage unit and declaration against the landlord to cease and desist from behaviour that would bring distress to the tenant.”
Mr Tam ordered that a new Adjudicator heard those claims. The granting of the rehearing by Mr Tam does not have any bearing on the merits or otherwise of those claims. He has simply ordered a re- hearing of those claims.
After the hearing on the 18 June 2021, I determined that the tenant’s claims in respect of the placement of the container on the landlord’s farm and the use of the shed, were commercial matters and not within the jurisdiction of the tenancy Tribunal. 1
I also confirmed that the tenant’s claims relating to Healthy Homes Standards being beached were dismissed as that legislation was not in effect during the tenancy. 2
The tenant has filed two further submission documents which set out claims that the tenant wants determined these are: a) A document submitted in 2021 which is entitled “Claims Set Out” Ms Gibson says that the outstanding claims at that date are: • That the landlord breached my quiet enjoyment of the property. • That the landlord has harassed me – exemplary damages sought. • That the landlord did not take reasonable steps to ensure that the landlord’s other tenants ([witness 2] and [witness 1]) did not breach my comfort, peace or privacy. • That the notice given by the landlord was retaliatory. • That the landlord failed to maintain the property. • That the landlord has not paid the tenant for work that the tenant did at the property. • That the landlord failed to lodge the bond. • Compensation for loss of amenity of my cottage having to store belongings in my small lounge waiting for garage repair. • Compensation for the loss of quality of life for the 29 months that items had to be stored in my lounge • Reimbursement for items purchased from me but not yet paid for i.e. coloursteel materials used on the improvement of the premise. b) On the 24 March 2022 Ms Gibson filed a further set of submissions (there have been many sets of submissions filed by each party and I confirm that I have read each of those documents before making my decisions). At paragraph 11 of those submissions Ms Gibson sets out additional claims made to those referred to above these are for compensation and exemplary damages. • Damage done to the Ms Gibson’s car and van by Ms Bailey 1 See paragraph 4 of my decision dated 18 June 2021. 2 See paragraph 5 of my decision dated 18 June 2021. • Damage done to Ms Gibson’s property by Ms Bailey’s animals. • Damage for causing unnecessary stress by having Ms Gibson evicted by the Bailiff. • Damages of $1,500.00 for altering the locks on the premises without consent of the Ms Gibson. • Damages of $3000.00 for mistreatment of Ms Gibson’s animals and obstructing access to them causing enormous anxiety and mental anguish to Ms Gibson • Damages for trauma and injury caused by Ms Bailey refusing to allow the Ms Gibson access to pick up her cat. • Damages of $3000.00 for seizing Ms Gibson’s goods interfering with them and obstructing access to them. • Damages of $350.00 being the cost of replacing all of the food in the Ms Gibson’s freezer and fridge. • Damages of $1000.00 for invasion of privacy causing stress, embarrassment and cost while being harassed and troubled by Mr Bailey on the 17, 18 22 and 26 February 2021 whilst the applicant was working with a builder on her shipping container getting it ready for removal. • Damages of $3000.00 for the humiliation and distress caused by Ms Bailey by turning off power and water during the time that Ms Gibson was vacating the premises. • Damages of $3000.00 for obstructing Ms Gibson ability to vacate the property causing enormous distress humiliation and cost. The landlord’s claims.
The landlord’s claims are set out in a document entitled “Submissions by counsel for Ms Bailey in relation to application by Gina Gibson”. The landlord’s claims are: • Rent arrears @ $285.00 per week for the period 1 December 2020 to 16 April 2021. • Breach of s40(2)(c) and 40(3A)(d) RTA not to disturb the peace and enjoyment of the Respondent and other tenants. • Failing to leave the premises clean and tidy and remove all rubbish. • Failing to leave curtains and curtain rods provided by the landlord at the beginning of the tenancy. • Compensation for Damage to the property.
Each party has filed considerable evidence and submissions which they say supports their claims. I confirm that I have read and considered all of the evidence whether it be written, oral evidence given at the hearings or recorded by Ms Gibson.
Ms Gibson suffers from a medical condition that means that she likes to record all conversations and interactions she has with people, so she can recall what was discussed at a later stage. Ms Gibson has produced many of these recordings of her interactions with Ms Bailey, [witness 3] and [witness 1], Police and Court Staff. Those recordings are often relevant to the claims, but as Ms Gibson does not always tell the other party that they are being recorded, it must be viewed through the lens that Ms Gibson knows she is being recorded but the other party does not.
I have been provided with voluminous extracts of evidence which both parties say is a record of text, email and conversations that they had with each other over the 7 years that the tenancy is place. Whilst Ms Gibson now submits that Ms Bailey had some kind of “power’ over her for the whole of tenancy, and that Ms Gibson was required to be submissive in order to keep the peace, that is not my observation of the relationship between them from the correspondence they have provided me with. I consider that they enjoyed a friendly relationship with each other from the beginning of the tenancy until mid-2020. They were neighbours and enjoyed many shared interests such as horses. They both disclosed health problems to each other and offered support to one another. During a period of personal difficulty for Ms Bailey in 2020, Ms Gibson offered her advice and friendship, even lending her a particular sweater to wear out to cheer her up.
I make the above comments because during the hearing it was clear that each party wished to be categorised as the wrong or victimised party, the good person in the relationship. When making my decision I consider the relevant evidence, if I find it is a breach then that does not mean that a party is a ‘bad person’ it simply means that they have breached the RTA. Was the eviction of the 16 April 2021 lawful and did the tenant fail to quit the property (s40(1)(e) RTA)?
A number of the additional claims relate to incidents that occurred between the parties in the period after the tenancy ended on the 16 April 2021. The first question that should be asked is whether the eviction was lawful?
The tenant says that the eviction of 16 April 2021 was not lawful. She claims that the stay of proceedings was in place at the time the eviction took place. She says that both Tenancy Services and Ministry of Justice told her so, and that therefore she had no idea that she could be evicted on the 16 April 2021. Further she says that the bailiff did not warn her or tell her that an eviction was imminent, therefore not giving her any time to pack up her belongings.
I accept that the tenant was told by MOJ contact centre that the stay was in place when she contacted the call centre in late March 2021. I also note that Tenancy Services also advised the tenant that if the stay was in place then she would not be evicted. However, Tenancy Services made it clear to the tenant that she needed to find out if the stay was in fact in place and they suggested that she call the MOJ. In any case that is moot, because after both of those telephone calls Ms Bailey attended a case management conference in front of His Honour Judge Harrison on the 9 April 2021. 3 I have heard the full recording of the case conference. Judge Harrison explained to the tenant that the stay could lapse if the original order that created it was upheld at the rehearing. Ms Holden, counsel for Ms Bailey submitted correctly to the court that as Adjudicator Tam had made the termination order pursuant to section 78A (unlawful residential premises) and as Adjudicator Tam had confirmed his determination that the premises were unlawful residential premises in his rehearing determination of the 17 March 2021, then the stay was discharged. Judge Harrison then made a minute which records that Ms Gibson’s tenancy will end within 14 days of the minute (so by 23 April) or by Court Bailiff’s execution of the Tenancy Tribunal order. Ms Holden also clearly states during the case conference that Ms Bailey has or intends to apply to the bailiff for eviction.
Ms Gibson was aware at that case conference that the stay had been uplifted and the legal position in respect of the stay because His Honour told her that. She was also aware that Ms Bailey planned on executing the termination order by Bailiff, because Ms Holden had said that, and his Honour wrote it in the minute. Furthermore, she agreed with his Honour that she had to and would leave the tenancy. I am therefore satisfied that even if the tenant had not fully appreciated that the termination order by the Tribunal was in force before the Case Management Conference on 9 April, there is no doubt that she was fully aware that termination order was in force from the 9 April 2021 onwards and that eviction by Bailiff was a real possibility.
There is no requirement in the RTA for a bailiff to advise the tenant that an eviction is imminent. The termination order tells the tenant that she must leave the property. The tenant knew that she had to leave the property as that was discussed in the case conference on the 9 April 2021
I am satisfied for the above reasons that the eviction on the 16 April 2021 was lawful and that the landlord has proven her claim that the tenant has breached s40 by failing to quit the premises. 3 This case conference was not in respect of this tenancy application but was inn respect of District Court Proceedings whereby Ms Gibson was seeking a restraining order against both Ms Bailey and a neighbour.
Once a tenant is evicted from the premises pursuant to a termination order , they have no legal right to the possession of the property. In this case the landlord gave the tenant times each day for the tenant and her helpers to go to the property and pack up the tenant’s belongings and clean. This temporary occupation was not a tenancy or a continuation of the tenancy, it was an occupational licence revocable by the landlord at will. In other words, the tenant was there only by agreement by the landlord, when the landlord withdrew her consent for the tenant to be at the property, then the tenant had to leave.
A breach of s40(1)(e) is also an unlawful act (s40(3A) RTA) of which exemplary damages of up to $1,500.00 may be awarded if it is done with intention. Having heard the recording of the case conference of the 9 April, I am left in no doubt that Ms Gibson was aware that she was required to leave the property, and a termination order was in place. I consider that her failure to leave was intentional and that exemplary damages should be awarded for that act.
Section 109 RTA requires the Tribunal to take into account the effect of the breach, and the public interest when determining the level of exemplary damages to be awarded. Taking these factors into account I award the landlord $1200.00 in exemplary damages because: a) The tenant had applied for a restraining order against the landlord and [witness 1], the tenant made it clear to His Honour Judge Harrison at the case conference that she agreed that if she moved out there would be no need for the parties to have contact with her. Despite her reassurances to the court she did not move out of the property. b) The tenant’s refusal to move out lead to many interactions with Police and the use of Police and Court resources which would have been unnecessary if she had in fact left between the 9 th and 16 April. c) The landlord allowed the tenant to come and pick up her items. The landlord had no obligation to allow the tenant the extent of time to do this. Even though the landlord offered the tenant times to do this, the tenant still complained about the landlord misinforming the Police in a conversation with them on the 4 May that the tenant had a lawful right to be at the property. This caused significant stress to the landlord, she had police at her property, there was conflict between her and the tenant and the tenant’s helpers all of which would have been avoided if the tenant had in fact left the property as per the Tribunal order. Claims for events that occurred between 16 April and 4 May 2021.
Many of the tenant’s claims relate to incidents that occurred between the 16 April and the 4 May. Some of the landlord’s claims do as well. The Tribunal has no jurisdiction to deal with landlord and tenants in respect of disputes that arise outside of the tenancy, or after the tenancy ends, except in specific circumstances (such as a failure to quit the premises). The following claims made by the parties are dismissed because they occurred after the 16 April 2021 and the Tribunal has no jurisdiction to deal with them. • Damages of $3000.00 for the humiliation and distress caused by Ms Bailey by turning off power and water during the time that the applicant was vacating the premises. • Damages of $3000.00 for obstructing Ms Gibson ability to vacate the property causing enormous distress humiliation and cost. The tenants claim for damages for events that occurred away from the premises.
I also note that the tenants claim for damages of $1,000.00 for invasion of privacy causing stress, embarrassment and cost while being harassed and troubled by Mr Bailey on the 17, 18 22 and 26 February 2021 whilst the applicant was working with a builder on her shipping container getting it ready for removal. is not a claim that I can hear as it relates to events that occurred at the shipping container, which was not included in the tenancy premises, and therefore occurred away from the tenancy premises and were not disputes about the tenancy. The tenant’s claims for breaches of quiet enjoyment.
Landlords have a duty to not cause or permit any interference with the tenant’s reasonable peace, comfort, and privacy in the use of the premises (section 38(2) RTA). A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act, and exemplary damages of up to $3,000.00 can apply.
The tenant claims that the landlord harassed her and breached her quiet enjoyment in the following ways during the tenancy. a) On the 23 August 2020 by knocking on her door and speaking to her about private tenancy matters in front of her guests and complaining about the guest’s dog. b) By interfering with the water and power c) By harassing her by: • Putting cows in the yard, which meant that they would rub up against her vehicles, poo in the yard outside her front gate, eat items in her garden, and make noise and smell. • Shifting and mistreating the tenant’s horse Magik so that it was put at the back of the farm and making the tenant’s horse obese. • By allowing [witness 2’s] dog to remain at the property when he would bark incessantly. • Instructing or permitting other occupants of the property to act in a manner which breached the tenant’s peace and privacy • Damage done to Ms Gibson’s car and van by Ms Bailey • Requiring her to store items in the cottage waiting for garage repair.
In order to establish a breach of quiet enjoyment it must be more than a disagreement or a clash of personalities. In the case of Smith & Olmstead v Floris [1994] NZTT Auckland 1404/93 it was said: Quiet enjoyment effectively means the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that however, one must bear in mind that the landlord/tenant relationship is between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type.
When the landlord and tenant relationship breaks down, especially when, like in this case there has been a long tenancy and a close working relationship (the parties were neighbours and friendly with each other before 2021) between the landlord and tenant there is bound to be some upset and a sense of grievance on both sides. Quiet enjoyment is the breach by the landlord by doing something overt to interfere with the way the tenant uses or enjoys the premises.
I am satisfied that the landlord beached the tenant’s quiet enjoyment on the 23 August 2020 when she knocked on the tenant’s door and told the tenant that her visited breached the ‘no dogs’ policy at the property. I heard a recording of the incident. Even taking into account that the landlord did not know she was being recorded and the tenant did, the landlord’s conduct breached the tenant’s quiet enjoyment in the following ways: • The landlord disclosed personal information about the tenant (including her alleged rent arrears) to the tenant’s guest. • There was no ‘no dogs’ policy at the property. • The landlord was asked to leave and did not do so. • The landlord asked personal information about the tenant’s guest. • The landlord was argumentative.
I am satisfied that this breach constituted circumstances that amount to harassment because Ms Bailey was repeatedly asked to leave and was warned that she was breaching the tenant’s quiet enjoyment, yet she continued to engage with the tenant and her visitor. This is an unlawful act which was committed with intention and exemplary damages are warranted.
Taking into account the effect on Ms Gibson, that she was embarrassed, stressed and upset as a result of interaction which was in front of her visitor, the public interest that tenants should be able to live in their home without interference by a landlord and that landlords should not disclose personal information to tenant’s visitors I consider that an exemplary damages award of $800.00 should be awarded for this breach.
The tenant gave detailed evidence and submissions about the many instances that she believed that the landlord breached her quiet enjoyment. Ms Bailey also gave me evidence and submissions which supported her ‘side’ of the story. In many instances the facts themselves are not in dispute, but the way that each party reads or interprets the situation is. An example of this is that Ms Gibson believed that Ms Bailey was shifting the cows into the yard to upset her or annoy her. However, Ms Bailey countered that this was part of her usual and normal farming practice and that she had done the same throughout the tenancy.
The tenant has not proven that the landlord has breached her quiet enjoyment for the remainder of her quiet enjoyment claims. I say in respect of each allegation: • There was no evidence that the cows in the yard was outside normal farming practice. • The tenant says that the landlord’s cows broke her visor on the car. It was unclear when this incident occurred, but there did not appear to be any record of the tenant advising the landlord that her cows had allegedly damaged her car at the time that it happened. Given the lapse of time, it is difficult to say what broke the visor on the tenant’s car. • The tenant says that the landlord would move her horse far away from her home, but there was no evidence that this was different than the normal patterns of paddock rotation that had occurred throughout the many years that Magik had been at the property. The tenant says that the landlord made her horse ‘fat’ by not allowing her to break feed her horse, but there was evidence that the horses were being break feed at different times. The tenant’s claims that the landlord effectively prevented her from managing her horse are incorrect. There was no evidence that the tenant was not allowed to go onto the farm to feed, or care for her horse. In fact, the tenant gave evidence that even when the horses were at the back of the farm she changed the paddocks of the horses, provided supplements and wormed the horses. The tenant’s claims that the landlord somehow caused her horse to become obese are unfounded. The overall responsibility for the Magik was the tenants and the tenant’s alone. • [Witness 3]’s dog was problematic. However, when Ms Gibson raised the issue with Ms Bailey, she would bring it up with [witness 2] and eventually asked [witness 2] to remove the dog. • There was no evidence that Ms Bailey every asked or condoned either [witness 2] or [witness 1] to harass or trouble Ms Gibson. If they did engage in such behaviour then I consider it more likely that they did so of their own accord, because of their own feelings towards Ms Gibson. • There was insufficient evidence to support the claim that Ms Bailey interfered with Ms Gibson’s water or power. Ms Gibson gave evidence that after the relationship deteriorated that Ms Bailey would periodically turn off water or electricity to her home. Ms Bailey says this is not true, and furthermore there was no way that Ms Bailey could isolate and turn off Ms Gibson’s power without interrupting other parts of the farm or houses on the property. Ms Gibson said that the placement of calves by Ms Bailey in a shed where the water and power could be manipulated (levers turned- which would interrupt power or water) allowed Ms Bailey opportunity to turn off and on those levers. Ms Gibson did not produce any evidence of the levers she said could be manipulated, and Ms Bailey told me that she had not manipulated them, and that even if she had they would not have turned off water to Ms Gibson’s house or the power supply. Water supply on farms which are feed from a bore can be problematic at times, and it likely that the water problems arose from issues with the bore or pump rather than because of Ms Bailey’s actions. • Ms Gibson said that Ms Bailey would deliberately park her tractor close to Ms Gibson’s car, there was video footage of Ms Gibson’s car being parked close to Ms Bailey’s tractor. However, I do not consider there to be sufficient evidence to say that this was breach of quiet enjoyment, as it is not clear whether the tractor or the tenant’s car was parked first (therefore I cannot determine with any certainty whether the landlord parked the tractor too close to the tenant’s car, or the tenant parked her car too close to the tractor). Further the tractor was parked on the landlord’s premises not the tenant’s premises. • The tenant says that the landlord delayed in repairing a garage/shed that the tenant had proposed to rent from the landlord to store her items causing her to have to store her items in a crowded manner in her lounge. I do not consider this to be a breach of the landlord’s responsibilities, the storage in the shed/garage was separate to the residential tenancy. When the items could no longer be stored in the shed it was the tenant’s responsibility to find alternative storage for them.
The tenant’s claims for other breaches of quiet enjoyment have not been proven and are therefore dismissed. Did the landlord take reasonable steps to ensure that other tenants did not breach Ms Gibson’s privacy, peace or comfort?
The tenant claims that the landlord did not take reasonable steps to ensure that the landlord’s other tenants ([witness 2] and[witness 1]) did not breach the tenant’s comfort, peace or privacy.
Section 45(1)(e) RTA provides that a landlord has an obligation to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
The tenant says that the [witness 2] and [witness 1] interfered with reasonable peace and comfort and privacy by: • [Witness 2] leaving his dog at the property without adequate water, food or shelter so that [the dog] would bark and whine. • [Witness 2] parking right outside Ms Gibson’s home and staring at her. • [Witness 1] parking outside her house and talking loudly on his phone about her on or about 1 December 2020 in a derogatory and threatening way. • [Witness 1] using or moving Ms Gibson’s tools and belongings. • [Witness 1] travelling fast up the race past Mr Gibson’s home in the early hours of the morning and driving his car in way that was designed to intimidate and upset Ms Gibson.
I heard from both [witness 1] and [witness 2] at the hearing. It is fair to say that [witness 1] is not fond of Ms Gibson.
[Witness 1][Witness 1] denies that he has ever acted in a manner that interfered with Ms Gibson’s privacy, peace or comfort. He told me that Ms Gibson had tried to obtain a restraining order against him after December 2020, and that the court had dismissed her application for a restraining order and ordered Ms Gibson to pay costs. I have read Ms Gibson’s affidavit in support of her application for the restraining order against [Witness 1], many of the allegations she makes against him in the Tribunal are repeated in that affidavit for the restraining order. The Tribunal is bound by findings of fact in higher courts, this includes the District Court. I have not seen a copy of the decision to dismiss the applications by Ms Gibson for a restraining order, so I do not know what the learned Judge determined in relation to the facts as set out. However, the dismissal of claim, and a costs award in [witness 1] favour indicate that the court did not accept the facts as set out by Ms Gibson. Even If I am wrong, I record that the evidence in front of me did not make out any claim that [witness 1] had interfered with Ms Gibson’s peace and enjoyment of the premises. The incidents regarding the tools occurred away from the tenancy premises. The incident on the 1 December occurred on the night of the tenancy Tribunal hearing and appeared to be [witness 1] expressing his own views and opinions on Ms Gibson’s claims against their landlord and against Ms Gibson. He was not on the tenant’s property.
Ms Gibson provided the Tribunal with an exhaustive transcript of texts between her and Ms Bailey. The tenor of these texts does not suggest that Ms Gibson thinks that Ms Bailey is causing or permitting [witness 1] to act in a specific manner. As an example, I record some of a text thread from 17 November 2019 Where there has been an issue with [witness 1’s] workmanship in a building they were working on together. Ms Gibson outlines some of the issues she has with [witness 1’s] work to Ms Bailey- Ms Bailey replies “Thank you, Gina. I will heed your wisdom” some date shortly after (the date of the text was left out of the evidence) Ms Gibson wrote “meanwhile another little issue has arisen, its non-urgent but may I ask for some help from your amazing brain? So, no drama but I’ve been napping today and have woken to a text from [witness 1]. Honestly we are like quibbering siblings, Liz. From his text his nose is out of joint. I’m not sure the best way to proceed and this is where I get anxious, do I ignore, or do I be assertive? So, I thought we have one NZs leading psychological experts on site so perhaps this is an opportunity for learning...”
In these texts it appears that Ms Gibson is seeking advice and counsel from Ms Bailey as a friend not a landlord, on how best to deal with the breakdown in the friendship/acquaintance with [witness 1]. Ms Gibson is not asking Ms Bailey to stop [witness 1] from doing something that interferes with her peace and enjoyment of her property, she is asking her as a friend for relationship advice on how to mend a relationship.
I am satisfied that Ms Bailey did not breach her obligations to Ms Gibson in respect of [witness 1] interfering with her peace and privacy. [Witness 2] and his dog
Having read the correspondence between the parties it is clear that [witness 2’s] dog [dog] was a problem and that Ms Gibson expressed to Ms Bailey on numerous occasions that his barking was keeping her up at night and that she was also worried about [the dog] because of what she perceived was his inadequate living conditions. It is also clear that Ms Bailey took these concerns seriously and raised them with [witness 2]. However, part of the issue was that Ms Gibson had fed [the dog] and gave him attention and [witness 2] and Ms Bailey both said that [the dog] acted up around Ms Gibson to get her attention. [Witness 2] eventually removed [the dog] from the farm.
Again, I am satisfied that Ms Bailey took reasonable steps, when asked to ensure that [witness 2] removed [the dog] from the farm.
Ms Gibson also made other allegations about [witness 2’s] conduct, these included him being creepy and weird, because he would park in the yards adjacent to Ms Gibson’s home and would sit there or would look into her house. There was no evidence that [witness 2] was doing anything other than what he told me, that he was operating the farm from his ute and would often make phone calls to do with the farm from his ute when parked in the yards adjacent to Ms Gibson’s home. [Witness 2] was always on the landlord’s property, not the tenancy premises. He was undertaking normal activities to allow him to run the farm.
When a tenant lives on a property which is used for other purposes, such as a working farm, then they should understand that there will be some noise and smell and that there will be workers and stock around their home. That in itself is not a breach of their privacy or enjoyment. It is a fact of life of where they live.
I record that I do not consider that [witness 2] acted in a manner that breached the tenant’s comfort, peace or enjoyment of her property. The tenant’s claim for retaliatory notice
On the 1 October 2020, Adjudicator Tam found that the notice given by Ms Bailey dated 6 September 2020 was retaliatory but did not award compensation or exemplary damages.
In his decision of 17 March 2021, he granted a rehearing on the issue of retaliatory notice. I take it that he meant the amount of compensation or exemplary damages that should be granted for retaliatory notice, as this was not dealt with by him in his decision of 1 December 2020. I accept and agree with the findings of Adjudicator Tam in his decision of 1 October 2020.
I award the amount of $100.00 to the tenant for exemplary damages, this takes into account: • The tenant was not paying any rent over the period, so it is likely that the landlord was mostly motivated was the tenant’s non-payment of rent not by the s56 notice for insulation to be installed. • The relationship between the tenant and the landlord had broken down, and there was some merit to ending the tenancy thereby ending the relationship and the disagreements between the parties. There are some limited circumstances where it is both parties and the public interest in ending tenancies where the relationship between the parties is completely soured and there is no hope of resurrecting the relationship. • A further award of exemplary damages together with the reduction of rent for compensation would result in an award that is manifestly unjust to the landlord and out of proportion to the breach committed, especially when the award for unlawful premises, which the tenant was awarded on the 1 December 2020 is considered. Tenant’s claims relating to spoiled goods and disposal of goods.
The tenant claims: • Damages for trauma and injury caused by Ms Bailey refusing to allow the Ms Gibson access to pick up her cat. • Damages of $3000.00 for seizing Ms Gibson’s goods interfering with them and obstructing access to them. • Damages of $350.00 being the cost of replacing all of the food in the Ms Gibson’s freezer and fridge.
As noted above the tenant had an obligation to quit the premises pursuant to the termination order. Section 62 of the RTA sets out what the landlord’s obligations are when the tenant has left goods at the property. (1) Where, on the termination of the tenancy, the tenant leaves on the premises foodstuffs or other perishable goods, the landlord may, immediately after taking possession of the premises, dispose of those goods in any way the landlord thinks fit. (2) If the tenant leaves on the premises goods that are neither foodstuffs nor other perishable goods, the landlord must, immediately after taking possession of the premises, make all reasonable efforts to contact the tenant and to agree with the tenant on a period within which the tenant is to collect the goods.
There is no obligation on the landlord to allow the tenant time to remove food items at an eviction. The tenants claim for the cost of replacing food is not proven and therefore dismissed.
The landlord allowed the tenant time to collect her belongings and clean the property. I consider the time that the landlord allowed the tenant to do this to be more than reasonable. The landlord did not seize the goods. The landlord took possession of the property as per the Tribunal’s order. It is the tenant’s obligation to ensure she complied with the termination order by failing to do that especially from the 9 April to 16 April, the tenant ran the risk that the landlord would evict her. The failure of the tenant to recognise that it was her own actions or inactions in failing to comply with the termination order that led to her goods being locked in the property, and being unable to locate and catch her cat, is indicative of what I observed of the tenant’s lack of insight of how her own behaviour impacted what occurred at the end of the tenancy.
Section 62(E) RTA makes it clear that despite the provisions in section 62 it is the tenant’s responsibility to remove goods on termination. Responsibility of tenant unaffected Sections 62A to 62D and any regulations made for the purposes of section 62(3A) do not absolve the tenant from any responsibility imposed on the tenant by the tenancy agreement or by section 40(1)(e) or by any rule of law to remove from the premises on the termination of the tenancy all goods owned by the tenant. (emphasis added)
Ms Bailey also said that she had not prevented Ms Gibson from catching her cat. Ms Bailey has not seized Ms Gibson’s cat. Ms Bailey does not know where the cat is.
The tenant further claimed that on one occasion where Ms Bailey had allowed the tenant and her helpers to come onto the property after termination to collect her goods, she had locked the door at 3pm locking the tenant’s helpers purse, car keys and personal belongings inside. As this incident occurred after the tenancy ended, then it is not within the Tribunal’s jurisdiction.
The tenants claim that the landlord breached her obligations by seizing her goods are dismissed. Interference with the locks.
The tenant claims damages of $1500.00 for altering the locks on the premises without consent of the tenant.
This claim was in respect of the landlord changing the locks after the eviction. The landlord was entitled to do that. There is no breach. The tenant’s claims for failure to maintain and completing work on the property.
The tenant claims that the landlord failed to maintain the premises. The premises were declared an unlawful residential premise at the hearing on the 1 December 2020 and confirmed at the rehearing on the 17 March 2021.
Section 45(1)(b) RTA requires a landlord to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
The tenant says her specific complaints about the state of repair of the premises were no laundry sink, broken laundry light, laundry door won’t shut properly so the rain gets in, the windows in the laundry were unsealed , no outside light at all and no light leading down the steps to the laundry, drafty front door that kept on dropping, clattering louvre in the kitchen, kitchen light falling out, ongoing roofing and guttering problems (which the tenant acknowledged had been partially fixed during the tenancy, bathroom fan, bathroom window replaced and shoer door removed (which the tenant says was eventually fixed in 2019) bathroom architraves finished.
Many of the items that the tenant has identified as being problematic such as no laundry sink, were items that were never included in the property. I do not consider it reasonable unless it is a minimum requirement in tenancy or other laws to require a landlord to install fixtures or chattels that are not part of the premises to begin with.
I am satisfied that due to the age and character of the building and the length of the tenancy that items did fail or need repair during the tenancy. However, I am bound to take into account the second part of s45 (1)(b) and that is to consider the period during which the premises are likely to remain habitable and available for residential purposes. These premises were deemed unlawful residential premises, that means that they were not lawfully to be used for residential purposes and should not have been used for that purpose throughout the tenancy.
When dealing with a case of unlawful residential premises, section 78A(4)(a) of the Act provides that the Tribunal may order the landlord to pay to the tenant— (i) the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii) an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct. (own emphasis added).
In his decision of 1 December 2020 Adjudicator Tam determined that that the tenant should pay one half of her rent. In recording the special circumstances, he took into account Mr Tam noted a number of items that referred to the repair and maintenance of the premises. The condition of the property was detailed in a building inspection report obtained by Ms Bailey dated 14 November 2020 and it is clear that Adjudicator Tam took into account the age, character and state of the repair of the property when determining what compensation should be awarded to the tenant 4
In the decision of Manage My Rental v Baxter [2015] NZDC 12011, the District Court held that a party cannot be censured for the same breach twice. An example of this is if a landlord failed to install a smoke alarm (therefore breaching s 45(1) (ba) RTA) and tenant is successful in claiming compensation for that breach. The tenant cannot claim additional compensation for breaches of s45(1)(c) or 45(1)(b) as well, even though a failure to install a smoke alarm would be a breach of those provisions as well.
I have not considered the breaches of failure to maintain because I consider that they are moot, as Adjudicator Tam has already awarded compensation to the tenant, which takes into account the state of the property. Even if the tenant was successful in her claims, then I would not have awarded any further compensation award as I consider that this would be censuring the landlord 4 4 See paragraph 9 of Adjudicator Tam’s decision dated 1 December 2020. twice and therefore breaching the principles set out in Manage My Rental v Baxter.
The tenant says that she completed work at the property and should be compensated for this work. This claim was part of the original claims heard by Adjudicator Tam. Mr Tam did not grant a rehearing in respect of this part of the tenant’s claim, and therefore it has been determined. 5 The landlord’s claims. Rent from the 1 December 2020 to 16 April 2021
The landlord seeks rent from the 1 December 2020 to the date of eviction 16 April 2021. When a tenant remains in possession after termination, they are liable for rent. (see s60(1) RTA)
As Adjudicator Tam has determined that the premises are unlawful then the mechanisms of s78A(3) apply.
This means that I can only award rent under s60(1) if I am satisfied that special circumstances exist. I record that I have taken into account the following when making this decision. • The special circumstances as outlined in Adjudicators Tam’s decision of 1 December 2020. • That Adjudicator Tam terminated the tenancy on 21 December and ordered compensation to that date. Therefore, the rent should be $132.00 per week from 22 December 2020 to 16 April 2021. • That Ms Gibson had somewhere to live and had the amenity of having living in a one-bedroom house. • That to order no rent to be paid would be unfairly punitive to the landlord who wanted to comply with the law at that time but was unable to do so whilst the tenant was living in the premises.
I therefore award the landlord $2187.43 being rent at $132.00 for the period 22 December 2020 to 16 April 2021. Did the tenant remove all rubbish, leave chattels and leave the property undamaged?
The landlord also claimed that the tenant: • Failed to leave the premises clean and tidy and remove all rubbish • Failing to leave curtains and curtain rods provided by the landlord at the beginning of the tenancy. • Damaged the property. 5 See paragraph 5 of this decision.
The obligation is to leave the premises reasonably clean and tidy, and I consider that the tenant left it clean and tidy from the photographs and videos provided. The landlord’s claim for failure to leave the premises clean and tidy is dismissed.
I am also not satisfied that the tenant failed to leave behind curtain rods and curtains provided at the beginning of the tenancy. The tenant had video of the state of the property on the day she moved in, while a few windows cannot be seen in that video, there were some windows where the landlord said that there were curtains and rods where there were not. There was no tenancy agreement that recorded all the chattels. Even if during this 7-year tenancy the curtain rods or curtains have gone missing, the landlord said that the curtains were not old at the beginning of the tenancy and therefore they were beyond their depreciable lifespan. It would be expected that the landlord may wish to replace those items at the end of the tenancy. The premises were unlawful and the condition of them has been taken into account in the unlawful premises award. I do not consider if appropriate to award the landlord cost of compensation for items that were not new, in premises that should not have been rented. The landlord’s claims for missing chattels is dismissed
The landlord claimed the damage to the property and goods left at the end of the tenancy. It was difficult to establish what was there at the beginning of the tenancy and what was there at the end, that had been put there by the tenant. I do not consider it appropriate, in an unlawful residential premise to award compensation for minor damage to the premises that was not consented for the tenant to live in. The landlord’s claims for damage to the property is dismissed.
The landlord also claimed that the tenant left behind rubbish in a nearby paddock after lighting a fire to burn items. However, the Tribunal only has jurisdiction to deal with damage to the premises, not to neighbouring premises. Therefore, this claim is dismissed.
The landlord also claimed that the tenant had breached the peace of other neighbours being [witness 1] and [witness 2]. Section 40(2)(c) provides: The tenant shall not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
The landlord claims that the tenant has breached 40(2)(c) by the taking out the restraining order against[witness 1] , and the comments that she made about him and [witness 2] to the landlord. The issue about the restraining order has been determined by the District Court, it is not a matter that I will make any comment on.
Ms Gibson did make unfavourable comments about both [witness 1] and [witness 2] to the landlord during the period where they were all Ms Bailey’s tenants, but I do not consider that these were a breach of their enjoyment, peace comfort or privacy, those comments were made to Ms Bailey at a time where Ms Gibson viewed her as friend, neighbour and landlord. There was no intention by Ms Gibson for Ms Bailey to pass those comments onto her other tenants unless they were complaints (which are not an interference of peace and enjoyment). The landlord’s claim that the tenant interfered with the landlord’s other tenants’ peace and enjoyment is dismissed. Final comments and observations.
It is now two years since this tenancy ended. The ongoing litigation by the parties needs to end for both of their sakes. Both have given evidence that this litigation is causing them much stress and affecting their health. This was evident at the many hearings we had. Whilst I realise that neither party has been completely successful in their claims, and therefore this decision may aggrieve both parties, I urge them both to accept the decision and to move forward with their lives. I have carefully considered the evidence that they both provided me with and have reviewed it before and many times whilst writing this decision.
On the flip side both parties have also been somewhat successful in some of their claims, and they should feel vindicated in having taken their applications to the Tribunal as that was the appropriate forum to use. Suppression and Publication
I am supressing the names of [witness 1], [witness 2] and the address of the property. They are not parties to this matter, and I do not consider that any public interest in the parties knowing their names. The address of the property is suppressed so that the witnesses cannot be identified.
I am not suppressing the names of the landlord and the tenant. Tenancy claims are in public and unless there is good reason, which I do not consider there to be here, the decisions of the Tribunal should be public as well. Costs
As both parties have been somewhat successful and somewhat unsuccessful in their claims, I do not award either of them the filing fee or costs.

Tenancy Tribunal case 4282448 — Rent arrears

Tenancy Tribunal case 4282448 — Rent arrears

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At a glance

Claims & awards

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Frequently asked questions