What was Tenancy Tribunal case 4308737 about?

This case concerned a exemplary damages dispute. The net award was $4,174.50.

How much money was awarded in case 4308737?

The reconciled net award was $4,174.50.

What type of tenancy dispute was case 4308737?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4308737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9589496-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4308737 about?

This case concerned a exemplary damages dispute. The net award was $4,174.50.

How much money was awarded in case 4308737?

The reconciled net award was $4,174.50.

What type of tenancy dispute was case 4308737?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4308737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9589496-Tribunal_Order_Redacted.pdf.

117 Pioneer Road, Pokeno, RD 1, Pokeno 2471 Tenancy Tribunal Case 4308737 — Exemplary damages

Reasons

Both parties attended the hearing held 30 October 2023.
On the 2 May 2023 Adjudicator Kee granted a rehearing of the landlord’s application 4308737. Adjudicator Kee did not grant any rehearing in respect of the tenant’s application but did make a direction that if the Tribunal determined on rehearing that the tenant was not liable to quit the premises later than the 5 July 2021, then the amount of compensation granted by Adjudicator Kee for lack of amenity should be adjusted accordingly.
Adjudicator Kee also ordered that a determination in respect of name suppression application by the tenants for both applications 4308737 and 4304549 should be made by the new adjudicator.
At today’s hearing the landlord confirmed that their sole claim which they wished to have the Tribunal determine was the tenant’s failure to quit the premises (breach of s 40 (1)(e) RTA). The landlord is claiming both compensation including the eviction notice, locks and other associated costs incurred by the landlord which the landlord says would not have been incurred had the tenant left the premises on termination, damages for stress and inconvenience resulting from the breach and exemplary damages in respect of the claimed breach.
The landlord’s remaining claims are withdrawn.
The tenant advised at the beginning of the tenancy that she accepted liability for the landlord’s eviction costs.
The issues for determination therefore are: a) Did the tenants fail to quit the premises on the termination date? (5 July 2021) (or after Auckland returned to level 3)? b) If the tenants failed to quit on termination, then: a) Is the LL entitled to compensation for this breach, claimed amounts? i. $200 eviction fee, ii. change of locks $349.50 iii. General damages for emotional harm. b) Is the LL entitled to exemplary damages (maximum amount to be awarded in schedule 1 RTA is $1500.00) c) If the date of termination is determined to be after the 5 July 2021, then should the award from lack of amenity in 430549 be changed? Did the tenants fail to quit the premises on the termination date? (5 July 2021) (or after Auckland returned to level 3)?
Section 45(1)(e) of the Residential Tenancies Act 19/6 sets out the tenant’s obligation it says: The tenant shall on the termination of the tenancy,— (i)quit the premises.
The provision makes clear that the tenant’s obligation to leave the premises is on the termination of the tenancy, not on some other event, such as the landlord being awarded a possession order.
The landlord gave notice on the 6 April 2021 to end the tenancy on the 5 July 2021, because the landlord wanted to move back into the house. The landlord was permitted by law to give this notice pursuant to s51(1)(a) RTA, which allows a landlord who wishes to move back into their own home to live to give the tenant at least 63 days’ notice. The landlord in fact gave the tenant 90 days’ notice.
The tenant applied to the Tenancy Tribunal on or about the 4 June 2023 for an order that the termination notice was retaliatory.
The tenant did not want to relinquish possession of the property until the tenant’s claim for retaliatory notice was heard.
The Tribunal heard the tenants claim for retaliatory notice on the 12 August 2021 and dismissed that claim as it was outside time.
The Tribunal made an order granting possession of the property to the landlord on 23 August 2021. In the decision it records: “The landlord was agreeable to the possession date being delayed until 23 August 2021, so the tenants have time to move out.”
The Auckland region where the premises were situated was place in a level 4 lockdown on the 17 August 2021.
Adjudicator Kee made directions to assist the parties, he said Further to my order on this matter dated 12 August 2021 ordering termination and possession at the end of 23 August 2021, I direct that the tenants are not required to move out of the premises during a Level 4 lockdown. I direct that the possession order may not be enforced until 24 hours after the premises address is subject to a lockdown level less than Level 4 that permits tenants to move premises in non-emergency situations (such as a standard Level 3 lockdown).
Auckland moved to alert level 3 at 11.59pm on the 21 September 2021.
I am satisfied that the tenant breached their obligation as they did not quit the premises on termination date which was the 5 July 2021. As the termination was valid and not retaliatory then the termination was in effect and the tenant’s legal obligation to leave the premises arose on the 5 July 2021.
The granting of the date of possession 23 August 2021 was an indulgence of the Tribunal and the landlord that took into account the realities of the tenant’s situation, having an obligation to quit, but having no where to live no and having to organise time moving and storage. This indulgence did not invalidate the termination notice, it merely gave the tenant further time before the landlord could enforce an eviction.
Section 64 (1) RTA says -Subject to subsection (2), on the application of any person entitled to possession of the premises following the termination of a tenancy, the Tribunal shall make an order granting possession of the premises to that person. (Own emphasis).
It is clear that the determination of the landlord’s right to possession is separate to the issue of termination of the tenancy. A tenancy can terminate but the landlord may not take possession of the property for weeks or months. The failure of a landlord to take possession does not revoke the termination.
The tenant’s submissions relating to their understanding of the law relating to the Alert level and covid lockdown etc, are in a large part irrelevant to the question of did they fail to quit the premises on termination, because the obligation to quit arises on termination in this case the 5 July 2021. The arguments submitted by the tenants relate to when were the landlord’s entitled to take possession and to enforce eviction, which is a different issue.

What compensation should be awarded?

Having determined that the tenants breached s 40 (1)(e)(i) RTA by failing to quit the premises on termination, I turn now to the compensation.
Compensation restores the party to the position that they would have been in had the breach not arisen.
The landlord moved from [City 2] to Pokeno on or about the 6 July 2021 expecting to move into the premises. When she was unable to do so she stored her household items at friends and family expecting a quick resolution of the issue. She stayed with her daughter and her family in [redacted]. Later that month the landlord moved her items in storage into the area.
When the landlord attended the hearing on the 12 August 2021 she says that she felt pressured to agree to a reasonable time frame to allow the tenants to move from the property, she says she reluctantly agreed to 23 August 2021.
As noted above Auckland was placed in alert level 4 on the 17 August 2021. Whilst both parties gave me different interpretations of the Alert levels and whether the tenant could move over level 4 or not, I consider that the wider picture is more relevant, the whole point of the level 4 lockdown was to restrict peoples and therefore Covid Delta’s movement, and even if moving was technically permitted, it should have been only when absolutely necessary and essential. Adjudicator Kee’s directions are in keeping with this purpose of a level 4 lockdown.
As Auckland moved to alert level 3 on the 21 September, then the tenants should have been prepared to leave on the 22 September. They did not do so and continued not to do so, until they were evicted by Bailiffs on the 8 December 2021.
During this period the landlord had to live in a shed on her daughter’s property. The shed did not have any kitchen facilities apart from what could be plugged in such as a microwave or jug. She tells me that her mental health suffered greatly over this period, she was in effect homeless in uncertain times. Whilst she was grateful to have the support of her family over this time, the lockdown added to stress levels, and a general feel of uncertainty.
Having considered all of the evidence I award the landlord the sum of $4,174.50 for compensation for the breach, in coming to this amount I have considered the following. a) The length of the breach – 5 July 2021 to 8 December 2021 being a period of 5 months, I accept that there was a period of about 30 days where there was a level 4 lockdown. b) The gravity of the breach – the breach was ongoing, during a period of lockdown, where there was limited options and alternatives for the landlord to find other temporary accommodation. That the tenant did not leave the property until evicted. c) That the landlord had to pay $65.00 per month for storage fees. d) That the landlord paid $3500.00 to her daughter for staying in shed/ home. This equates to $159.00 per week. The landlord accepts that this was not expected, but I consider that the landlord would have had to pay for accommodation elsewhere, and I have allowed $3300 for extra accommodation costs incurred by the landlord, ($150.00 per week). I consider this entirely reasonable, as it is less than the price of renting a room in flat or house share. The tenant’s failure to leave the premises rendered the landlord homeless. The landlord is out of pocket by this amount and should be reimbursed. e) That whilst the tenant handed back the keys, the long period of noncompliance and the fact that the tenants had to be evicted by bailiffs made it reasonable for the landlord to re key the property at a cost of $349.50 f) The tenant accepted liability for the eviction fees= $200.00
I did not take into account the tenant’s difficulty in finding other suitable accommodation as that is not relevant to the question of compensation for the breach. The tenant had been aware since the 6 April 2021 that the landlord required the property for her own purposes. The tenant effectively had 90 days to termination, this was more than the statutory obligation of 63 days. In addition, the tenant was given until the 23 August, the tenant knew that the termination order was valid on the 12 August and should have had plans in place if she needed to move. She says that she had firm plans to move on the 21 and 22 August but did not produce any documents from her movers that confirmed supported her evidence that she was moving that weekend her items into storage. She gave no evidence of where she had planned to live after that date and the only inference, I make from her evidence was that at 17 August 2021 the tenant did not have firm plans and had made no real attempt to move out of the property. Exemplary damages.
Breaching section 40 (1)(e)(i) is an unlawful Act where exemplary damages up to $1500.00 may be awarded. The Tribunal must first be satisfied that the landlord acted with intention.
I am satisfied that until the 12 August the tenant was not acting intentionally to breach the RTA by failing to quit but was instead acting in reliance of her own claim for retaliatory notice, however after that date, when the termination was upheld, then she was required to move. I consider her failure to do so intentional. I accept that there were some issues with the lockdown, but it is very clear to me that the tenants acted with intention from the 22 September 2021, when they should have moved after lockdown. The tenant had had an additional month to organise moving, she should have been ready to go as soon as the lockdown levels lessened. Whilst I accept that moving may have been more difficult than usual at this time, I do not accept their evidence that it was not allowed and almost impossible. There was no excuse for their failure to do so.
Having found that the tenants acted with intention I am satisfied that they committed an unlawful act.
When determining the quantum of exemplary damages to award I must take into account the intention of the tenant, the effect on the landlord and the public interest. Taking these factors into account I award the landlord $1000.00 in exemplary damages for the following reasons: a. The landlord gave me evidence from her medical practitioner which reiterated her reports of stress and detailed the medication that the landlord had to be prescribed to alleviate her symptoms. Her family tell me that their mother was suffering greatly, she became consumed by being denied possession of her family home, she was forgetful, not sleeping and despaired for her future. b. I am satisfied that it is likely that the root cause of the landlord’s mental anguish was not the covid lockdown, nor these proceedings but was the failure to the tenant to leave the premises on termination. I say this for reasons that include, the landlord was already showing signs of stress, such as not sleeping etc from the 6 July 2021 which was well before the lockdown. c. In addition to the stress, the landlord had the uncertainty of not knowing where she would be living, having to live with family members, having to live in a shed and putting her household possession in storage. During a tumultuous time (the extended lockdown in Auckland) the landlord had very little connection with the things that would anchor her, like her home and her possessions. d. I also acknowledge the effects on family members of the landlord, who gave evidence that they became extremely concerned for their mother’s health. e. It is in the public interest that when landlords terminate so that they can reside in their homes, that their homes are made available to them. Parliament has decided that landlord can terminate tenancies in this situation and the law should be upheld. It is in the public interest that when a breach is of this nature and carried on for such a long time that a significant award is made. The amount to be paid.
In Adjudicator Kee’s decision of the 3 October 2022 he made awards in favour of both the landlord $4,299.50 and the tenant $6,211.50, the net result of this was that the landlord had to pay the tenants $1,911.50, which they have paid.
Upon rehearing I have awarded the landlord $5,174.00. This means that the landlord must refunded by the tenants the difference between my award and Adjudicator Kee’s award = $874.50. Accordingly, I have made an order that the tenants repay the landlord this amount.
I confirm that as the date of termination has not changed then there is no change to the compensation awarded to the tenants by Adjudicator Kee. Name suppression.
The tenant seeks name suppression, name suppression can be awarded to the successful party. Whilst the tenant’s have not been successful in this application they were successful in the substantive decision of 3 October 2022. Adjudicator Kee has determined that the Adjudicator who heard the rehearing should determine the issue of name suppression. The landlord confirmed at hearing that they do not want name suppression. The tenants do. As the tenants have been partly successful in their claim then they are entitled to name suppression.

Tenancy Tribunal case 4308737 — Exemplary damages at 117 Pioneer Road, Pokeno, RD 1, Pokeno 2471

At a glance

Award balance

Tenancy Tribunal case 4308737 — Exemplary damages at 117 Pioneer Road, Pokeno, RD 1, Pokeno 2471

At a glance

Award balance

Claims & awards

Reasons

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

What compensation should be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions