What was Tenancy Tribunal case 4354357 about?

The tribunal order states: The parties’ names and identifying details including the tenancy address must

How much money was awarded in case 4354357?

Lost Amenity - Reduced Pergola: $478.57 awarded to tenant

What type of tenancy dispute was case 4354357?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4354357?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9942725-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4354357 about?

The tribunal order states: The parties’ names and identifying details including the tenancy address must

How much money was awarded in case 4354357?

Lost Amenity - Reduced Pergola: $478.57 awarded to tenant

What type of tenancy dispute was case 4354357?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4354357?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9942725-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4354357 — Harassment

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4354357. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lost amenity - reduced pergola		$478.57	Lost amenity - reduced pergola

Counsel, Gemma Ericson, represented the landlords. The landlords also attended the hearing in person. 1

One of the tenants attended in person. The other tenant attended by telephone.

The tenants claim that the landlords’ termination notice was invalid, that the landlords harassed them, that one of the landlords’ notices of rent increase was invalid, and that the landlords breached the tenancy agreement by reducing a pergola that sheltered the deck. For remedy, the tenants seek orders for compensation and exemplary damages. Background

The premises is one of three freestanding houses sharing the same driveway, all owned by the landlords.

The tenancy began on 30 March 2019 and ended three years later, on 2 April 2022.

The initial tenancy was for a term of one year ending on 30 March 2020. The rent was $530.00 per week. The fixed term was extended or renewed in February 2020 to 30 March 2021, with the rent set at $530.00 (with water not included in that payment). From 24 September 2020, the parties agreed that the tenants would pay $7.00 per week in addition to the $530.00 for water. On 30 March 2021, the fixed term was extended or renewed to 30 March 2022, with the rent set at $550.00 per week (with water now included in that payment).

A few months after the tenancy began, the landlords cut back the size of the deck’s newly-built pergola by about 1.3 metres because Council directed that the pergola as-built breached height to boundary rules. The 1.3m trim brought the pergola within the correct height to boundary rules.

On 14 February 2022, the landlords gave the tenants notice ending the tenancy as at the end of the fixed term, 30 March 2022. They mentioned in the notice that the tenants were wonderful tenants but that “we need property for our family member – son”. 1 This is a reserved decision. The hearing was on 24 January 2024.

The next day, the tenants and the landlords agreed on a later end-date for the tenancy to give the tenants more time to find a new tenancy, changing the end- date from 45 days to 90 days but permitting the tenants to move out earlier if they found a new premises without having to give 28 days’ notice.

The tenants found a new tenancy premises early and the tenancy ended on 2 April 2022.

Initially at the end of the tenancy, the tenants were happy with how the landlords had treated them. However, they later found out from one of the neighbouring tenants that the landlords’ son had never moved into the premises as the landlords claimed he would. Rather – the neighbour reported – a carport was converted to a bedroom, and the landlords rented the premises out to other tenants with no family relationship in July of 2022.

The tenants are upset and angry because they now believe the landlords lied to them about their true reason for ending the tenancy.

The issues for determination are: a. Should the landlords compensate the tenants for cutting back the pergola? b. Was the landlords’ termination notice unlawful? c. Did the landlords harass the tenants? d. Was the landlord’s rent increase invalid?

Should the landlords compensate the tenants for reducing the pergola?

The pergola was significantly reduced in size. The tenants anticipated that the amenity they would benefit from would exist during the period of the fixed term.

The landlords are liable to the tenants for the loss of amenity because it was a loss of a benefit under the contract.

I quantify the loss of amenity at $10.00 per week. The period that applies to is the first year of the fixed-term tenancy. The fixed term was extended or renewed on agreed terms at the end of the first year of the tenancy. The tenants had the opportunity to renegotiate the rent at that time if they considered the rent did not account for the pergola being cut back. Was the landlords’ termination notice unlawful? Legal principles

Under s 60AA of the Residential Tenancies Act (RTA) landlords must not give a notice to terminate the tenancy knowing they are not entitled to do so.

Breaching this provision without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 2

The Tribunal might also grant relief if tenants suffer harm due to landlords giving an invalid notice. Discussion

The tenant’s principal reason for bringing a claim was their belief the landlords had dishonestly terminated the tenancy. They feel outraged and very hurt.

The landlords’ notice ending the tenancy was based on their belief they could terminate the fixed-term tenancy without grounds under the pre-existing law which allowed landlords to simply not renew a fixed-term tenancy by giving notice of that. In fact, the law had changed. From 11 February 2021, the landlords’ statutory right not to renew the tenancy had been repealed and fixed- term tenancies automatically converted to periodic tenancies. 3

Even though the landlords had thought they could simply give notice of non- renewal without giving reasons, they also mentioned in the notice that the reason for the notice was that they needed it for their son.

Technically, the landlord’s notice was invalid because although they had verbally agreed with the tenants that the fixed term would be renewed prior to the law change, the tenants did not sign the renewal addendum until after the law change.

If the landlords had been abreast of the rules at the time, they could have given the tenants notice based on wanting the premises for their son 4 or for extensive renovations. 5

The tenants are convinced that the landlords ever intended their son to move into the premises. However, I found the landlords’ narrative plausible. 2 Residential Tenancies Act 1986 (RTA), s 60AA and Schedule 1A. 3 Residential Tenancies Amendment Act 2020, s 41. 4 RTA, s 51(1)(a). 5 RTA, s 51(2)(f).

The landlords added a room to the premises by converting a carport, which was consistent with intending to move in with their son. They say, the only reason that they and their son did not move in was because he reconciled with his wife, and so remained living together with her and their children.

The landlords state they were very happy with the tenants. There is nothing in the evidence of substance to suggest otherwise. The parties’ previous communications appear to be positive and courteous.

The tenants were dissatisfied with the evidence the landlords provided. However, the landlords gave evidence in person. That is direct evidence before a Tribunal. Misleading the Tribunal would be a criminal offence. The landlords only produced a letter from their son rather than calling him to give evidence in person, but that does not mean their story should be disbelieved.

I am satisfied on the balance of probabilities that the landlords’ account is genuine. It follows the tenants did not prove the converse on the balance of probabilities.

The tenants also submitted the notice was in breach of the COVID-19 Response (Urgent Management Measures) Act 2020 prohibiting terminations under Level 4 lockdowns. However, those measures had expired by the time of the landlords’ notice. Conclusion

I find that the landlords did not terminate the tenancy knowing they were not entitled to. Exemplary damages are not available.

The landlord’s notice was technically invalid. However, in the circumstances I do not consider that any order should be made against the landlords. The notice was given in good faith and good reasons to give notice existed. It was just that the landlords were not up to speed with very recent law changes. 6 Consequently, they incorrectly relied upon the incorrect rule when other valid grounds for termination existed.

The breach is of a technical nature.

I acknowledge the tenants’ feelings of hurt and pain but find it would not be appropriate to make an order. 6 Section 85(2) of the RTA provides, “The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.”

Did the landlords harass the tenants?

Legal principles

Landlords must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 7

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. 8

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". 9

Black’s Law Dictionary 10 defines “harassment” as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

The New Oxford Dictionary of English“ 11 defines “harass” as: subject to aggressive pressure or intimidation. Discussion

The tenants were happy with how the landlords treated them at the time they moved out. However, they have revised their views on that since they decided the landlords unlawfully terminated the tenancy.

The tenants point to the landlords asking them to keep an eye on their water use. The landlords emailed the tenants on 19 July 2021: Hi [tenant’s name] and family please if u like to be careful with water spending form 10kl you spend now 14kl you can see invoice. I hope you can understand that. Have a good night Thanks

Four months later on 17 November 2021, the landlords texted: 7 RTA, s 38(2). 8 RTA, s 38(3) and Schedule 1A. 9 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. 10 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 11 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). Hi [tenant’s name] one more time I want you let you know please please be careful with spending water evry bills is more and more please do not watering the garden water is very expensive tell to your family Thanks

The tenants also say they were pressured to move out: [Landlord’s name] actually texted and called us several times to urge us to move out as quickly as possible, she told us her son was in big trouble and need to move in as soon as possible. She told us her son was living with his friends and too many people had to squeeze in a small house. She mentioned she had no time to wait in the text message. Because we feel her urgency, we rushed to pack and we rushed to move. Because we felt sorry for her son's family and wanted him to get relieved as soon as possible, we tried really hard to move out as quickly as possible. However, it all turns out to be a lie.

The landlords say that they were keen to take possession of the premises, but they did not pressure the tenants to move out. They understood the tenants’ property manager was doing a bad job by delaying the tenants intended move- in date and they meant to encourage the tenants in that situation, not pressure them to move out.

I have read the communications between the parties and heard their evidence. The parties differed on whether the tenants were using too much water, but they managed that difference of opinion appropriately.

I am not persuaded that the landlords inappropriately pressured the tenants to move out early. They were eager to use the premises for their son, but they agreed to extend the tenants’ move-out date to 90 days. The tenants did not find the landlords’ communications inapt at the time. It is likely that it was only after they conceived the landlords had misled them that the tenants’ perception of the events changed to their current one.

I am not persuaded on the balance of probabilities that the landlords’ communications amounted to an interference with the tenants’ reasonable peace, comfort, and privacy. Conclusion

The tenants’ claim in this regard is dismissed. Was the landlord’s rent increase invalid?

The tenant’s claim that the landlords increased the rent earlier than they were entitled to do was based on the landlords increasing the “rent” by $7.00 per week to account for landlords taking over the responsibility for paying the water company for the tenants’ water use.

Despite the parties using the term “rent” the $7.00 was not truly a rent increase it was to account for the landlords taking over of the water cost.

This claim is dismissed. Non-publication

The parties seek non-publication of their identifying details.

Under s 95A(1) of the RTA, the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Both parties have substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the parties’ conduct or any other circumstances of the case.

Reasons

Claims and awards in Tenancy Tribunal application 4354357. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lost amenity - reduced pergola		$478.57	Lost amenity - reduced pergola