What was Tenancy Tribunal case 4431392 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $795.44 immediately as follows.

How much money was awarded in case 4431392?

The reconciled net award was $795.44.

What type of tenancy dispute was case 4431392?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4431392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9564029-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4431392 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $795.44 immediately as follows.

How much money was awarded in case 4431392?

The reconciled net award was $795.44.

What type of tenancy dispute was case 4431392?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4431392?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9564029-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4431392 — Mould & damp

Order

[The landlord/s] must pay [The tenant/s] $795.44 immediately as follows.

Reasons

Both parties attended the hearing. The landlords were represented by [Landlord 1] who appeared by teleconference and is referred to as the “landlord”.
This tenancy began on 17 January 2020 and ended on 2 November 2022 after the tenants gave Notice of Termination.
The whole of the tenants’ bond has been refunded to them by agreement. Claims
The tenants seek compensation/ exemplary damages for what they say are the following breaches of the landlords’ obligations to them: a. an unlawful entry into the premises during which entry a substance harmful to the tenants was sprayed onto the curtains; b. inclusion of an unlawful term in the tenancy agreement requiring that they have the carpets professionally cleaned at the end of the tenancy and seeking to enforce that unlawful term; c. failure to adequately maintain the gardens; d. breaching the tenants’ right to quiet enjoyment of the premises in connection with viewings for potential new tenants
Each of those claims is addressed separately below. Unlawful entry
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
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.
The landlord notified the tenants in September 2022 that she was going to do an inspection of the garden on 2nd or 3rd October. On Saturday 2nd October the landlord txt the tenants to say that she would drop in the next morning between 11:00 and 11:30.
The tenants confirmed that was fine. Later in their exchange, after the landlord asked if they would prefer to be present, the tenants noted, “No problem at all for that time, you’ll only need access to the garden so we won't need to be there to open up.”
The landlord replied at 4:07pm, “Oh okay I think I hv a key just going to do the curtains it won't take long.” Then at 4:08 “I'm just going to clean the mold.”
The tenants responded at 4:22pm, “Hi [Landlord/s] please don't access the house to do maintenance or for any other reason. We were only given notice that you would be inspecting the garden.”
At 7:49 the landlord txt, “Well I am also doing the mildew on the net curtains wont take long I have a special product for it.” And later at 8:48pm “You won't need to be there for me to clean it. But if you prefer to what time are you home till in the morning?”
The tenants’ evidence is that they went out on the Sunday morning and returned to the premises around 4:00 pm on the Sunday, by which time the landlord had been and gone. They say that the curtains had been sprayed with a chemical which had a very strong odour to the extent that they were unable to remain in the premises and went and stayed with family overnight.
The landlord’s position is that she gave adequate notice and that the curtains were washed in place with approved product – not sprayed with any chemical and that any lingering odour would just be because the weather prevented the house being aired afterward.
The relevant provision here is s.48(2)(d) which gives a landlord the right to enter premises, “for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.”
I am satisfied that for the purposes of this section cleaning the curtains was necessary maintenance.
The evidence satisfies me, on the balance of probabilities, that: a. The first point at which the tenants became aware that the landlord intended to enter their home was via the landlord’s txt at 16:07pm on the Saturday; b. the landlord entered the premises to wash the curtains before that time on the Sunday; and c. accordingly, the landlord’s entry into the premises was without the tenants having been given the required 24 hours’ notice d. the landlord’s entry was therefore unlawful.
In considering whether to make an award of exemplary damages for that unlawful entry, the Tribunal must take into account the criteria in s.109(3), which are: (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest”
The landlord’s intent was to complete necessary and appropriate maintenance which was for the tenants’ benefit as well. I take into account as well that the landlord lives some 2 hours’ drive from the premises and was going to be at the property for exterior work/ inspection that the tenants had been notified of well in advance – so I understand from her point of view the rationale in wanting to wash the curtains while she was there.
The effect on the tenants was that their sense of privacy and security was compromised on returning to find the landlord had entered during their absence and done work that impacted their ability to be in their home.
In my view, an exacerbating feature of the landlord’s breach and one that added to the tenants’ unease was that the landlord’s decision to enter the premises was made despite the tenants’ clearly expressed request that she not do so because, “We were only given notice that you would be inspecting the garden “
In terms of the public interest, while the landlord’s notice was almost sufficient to meet the s.48(2)(d) criteria, the requirements of that provision are specific and clear. Both landlords and tenants are entitled to rely on them to provide certainty – unless other arrangements are agreed.
Weighing those considerations, I find that a modest award of exemplary damages is appropriate. Unlawful Terms
The agreement contained a requirement that the tenants have the carpets professionally cleaned at the end of the tenancy. The landlord required that term be complied with. The tenants pointed out their view that they could not be required to do so and why.
Initially, the landlord continued to insist that the carpets be professionally cleaned or there would be a deduction from the tenants’ bond, but then relented and the whole of the tenants’ bond was paid to them without deduction.
The tenants are correct that tenants cannot be required to have carpets commercially cleaned at the end of the tenancy unless there is cause. The obligation on the tenants (s.40(1)(e) is to, “...leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish,”. By s.11, any provision of the agreement that purports to create a greater obligation on the tenants is unenforceable.
Here, the tenants did recover the whole of their bond and I am satisfied that the landlord is now aware of the position. While I accept that the tenants did need to defend their position in a way that should not have been required of them, no quantifiable loss has been caused and I do not see the situation as one constituting harassment by the landlord.
In those circumstances no award against the landlord is warranted. Garden maintenance
The agreement provided for the tenants to keep the gardens and grounds in a reasonably tidy condition. It is common ground that the landlord was responsible for trimming trees and large foliage.
The communication quoted above show that the landlord intended to inspect how the tenants were keeping up to their responsibilities in the garden.
The evidence shows that the from February 2022 there was communication between the parties about the need for the landlord to clear away growth that was blocking airflow to the air conditioning unit. The landlord’s partner cut down part of a bamboo hedge for that purpose, but the cuttings have not been removed. I accept the tenants’ evidence that he was told they did not mind if he took a couple of weeks to take it away but did not say they didn’t mind it just being left there.
The landlord came in March 2022 to do some tree work but the prunings remained at the premises through to the end of the tenancy.
The landlord says that external circumstances made it harder for her to do the garden maintenance as thoroughly as she had previously. I accept that but it is nevertheless an obligation she has to the tenants.
The landlord was clear that she knew she needed to clear away the cuttings and do other garden work to have the premises in an appropriate condition for new tenants to view when this tenancy was ending. These existing tenants were entitled to the same. And I find that the landlord breached the obligation to maintain the premises in a reasonable state of repair (s.45(1)(b)).
There is a difference of view as to the extent the uncompleted garden work impacted on the tenants use and enjoyment of the premises. Having heard the parties’ evidence I find that it was more than negligible but also note that if it had been something of significant importance for the tenants, the Act allows for redress through Notice to the landlord under s.45(1)(d).
Assessing appropriate compensation is inexact. I fix $15.00 per week for the 35 week period that the work had not been done as appropriate to compensate the tenants for the impact on their use and enjoyment of the premises. Breach of Right to Quiet Enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986. 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. See section 38(3) and Schedule 1A RTA.
Quite some time after the tenants had given Notice of Termination, they received a call from a property manager requesting that they accommodate a viewing the next day at 9:30am. The tenants had not been advised by the landlord that a property manager had been appointed.
The tenants told the property manager that viewings would only be possible on weekends. The tenants also asked for confirmation that the property manager had authority to act for the landlord.
The tenants were then contacted by the landlord asking why weekday viewings would not be possible. Later the same day (Monday 17 October) the landlord txt the tenants: ‘Morning, there is a viewing on this Saturday and next wed at 4pm that I will be doing at the property myself. The viewing will be for 30 mins each. Thank you for your co-peration. [The landlord/s]’
The tenants re-iterated to the landlord that weekday viewings would not be possible, to which the landlord responded that, “...I have set up appts for viewings on both the Sat and Wednesday next week at 4pm as that is the only TIME I can come down to do it over the next week.”
The tenants received a visit from prospective tenants on Wednesday 19 October, saying that they had a viewing booked for that time, arranged by the property manager.
The tenants also note that the advertisement for the property said that it was available from 13 October whereas their tenancy did not end until 2 November, meaning that they had interested parties, believing the premises to be available, driving by and stopping to look in, while the tenants were still living there.
The landlord’s approach is set out in her response to the tenants after being notified by them of the visit by the prospective tenants on 19 October, as follows: “Thank you for allowing me to come down to do the viewing tomorrow Saturday at 4pm. I had applied to [Property management company] to get help with finding tenants as it's too difficult for me to come down living 2 hours north. I had no idea they had contacted you before arranging with me. I'm sorry that you had people showing up to view the house on Wednesday. I had booked viewings on Sat and Wednesday next week at 4pm so they must have thought it was this Wed. I will call [Property management company] this morning to cancel the Wednesday one. And let them know about the ad saying it's available now when I told them it's not available till after the 2nd Nov. What times are good for you on Saturday 29th for viewing as I can't come down then and will let [Property management company] know to book it in?
No weekday viewings took place.
There seem to have been some communication issues between the landlord and the property manager. According to the landlord, the tenants had been contacted by the property manager and the listing was up and running, while the landlord was still completing the agency paperwork.
Once a tenancy is ending, the landlord has the right to enter the premises “..at any reasonable time...” for the purpose of showing prospective tenants. The landlord must first get the tenants’ consent which the tenants must not unreasonably withhold or make subject to unreasonable conditions (ss.48(3a) and (3A)).
What is reasonable is dependent on the situation and the parties’ circumstances. The tenants note that they are very private people and that means they are more likely to be impacted by having strangers people coming into their home. That may make what conditions are “reasonable” for them a little more restrictive, but regard also must be had to the legitimate interests of the landlord in finding new tenants. I do struggle to see limiting viewings to a few hours each Saturday as a reasonable condition to their consent – given the landlord’s right otherwise to enter the premises for that purpose, “...at any reasonable time...’
While there were some unfortunate communication errors, I do not find the landlord’s actions to have, “...interfere[d] with the reasonable peace, comfort or privacy of the tenant[s] in their use of the premises..” and accordingly they do not constitute harassment.
That claim is dismissed.
Because [The tenant/s] have succeeded with claims I must reimburse the filing fee.

Tenancy Tribunal case 4431392 — Mould & damp

At a glance

Tenancy Tribunal case 4431392 — Mould & damp

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions