Published tribunal order
Tenancy Tribunal case 4442183 — Cleanliness in Pakuranga, Auckland
Decided 26 Sept 2023 · Published 26 Sept 2023 · Application 4442183
- Cleanliness
Order
- An application for suppression has been made in this case by both parties. The Tribunal, having had regard to the interests of the parties and to the public interest, orders suppression of the Tenant/Landlord name and identifying details.
- The following amounts are awarded as shown below:
- The Bond Centre is to pay the bond of $2,130.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $0.00 [The tenant/s]: $2,130.00
- All other claims are dismissed.
Reasons
Background
- This tenancy began on 21 January 2022. It was for a fixed term, due to end on 21 January 2023, and later became periodic. The rent is $710.00 per week and a bond of $2,130.00 was paid.
- There are two applications, and the parties attended two hearings. [Landlord 1] attended by teleconference for the landlord and both tenants appeared in person. [Landlord 2] was present (via teleconference) for part of the first hearing. At the second hearing, [Witness 1] and [Witness 2] were called as witnesses for the landlord. [Witness 3] was a witness for the tenants.
- As noted in the earlier order, the landlord applied for rent arrears, power charges and noted breaches of the tenancy agreement relating to marijuana use by the tenants and concerns regarding their behaviour. At the first hearing, the landlord advised that rent arrears were no longer sought and the application was amended to include a claim for termination of the tenancy. Compensation of $3,000.00 was also claimed for the tenant’s behaviour, alleged to be retaliatory and anti-social.
- The tenants filed a cross application seeking compensation and exemplary damages. Compensation of $2,020.25 was sought for the effect of work undertaken by the landlord on the premises, and for power usage by the tradespeople undertaking this work. Exemplary damages are claimed on the basis of a breach of quiet enjoyment and unlawful entry by the landlord. The tenants also claim that the landlord’s notice to end the tenancy was unlawful.
- At the first hearing, the parties reached agreement that the tenancy was to end on 24 March 2023. This hearing was adjourned part-heard.
- At the second hearing, further evidence was provided. Both parties have made their own claims arising from an incident on 22 December 2022 when [Witness 1] went to the premises to do some gardening. Following interaction with the tenants, the tenants called the police. The landlord considers that the tenants have been intimidating and bullying, and compensation is sought. The tenants claim the landlord unlawfully entered the premises and breached their quiet enjoyment. These claims are considered below. General principles
- In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.” The landlord’s application: 4442183 Electricity charges
- The landlord confirmed that a total of $1,021.82 in electricity charges was sought from the tenants. This covered the period from June to December 2022. Evidence of the power accounts has been provided. The landlord has also provided evidence from those undertaking the building work regarding their likely power usage, and email correspondence between the landlord and tenant regarding the electricity charges.
- The tenants consider there ought to be a reduction due to tradespeople using electricity while undertaking work on the premises for the landlord. In their application, the tenants state that prior to the work being carried out, from April to June 2022, their average power usage was around $109.50 per month. They say this increased when the work was being undertaken, due to the additional electricity used. They note that from June to November 2022, the monthly average was $142.05. They seek the difference, being $32.55 per month for five months, with a total of $162.75.
- Under the Residential Tenancies Act 1986 (the RTA) a tenant is responsible for all outgoings for the premises exclusively attributable to the tenant’s occupation of the premises, including electricity, gas, telephone and internet. 1 The tenants view that they have incurred additional costs for electricity due to usage by tradespeople is reasonable. However, the evidence provided by the landlord from those undertaking the work shows the electricity usage is likely to be more limited than the tenants claim.
- [Tradesperson 1] undertook some of the work. In his email of 13 February 2023 [Tradesperson 1] has provided a detailed account of the nature of the work undertaken and the times when electricity from the premises was used. He has explained that, for the first three days, they used rotary hammer breakers and for the rest of the work, used battery operated tools. They also used power for the vacuum cleaner “several times” and the DeWalt portable table saw for a few hours when undertaking work on the weatherboard.
- The electricity usage arising from the deck repairs has also been addressed in a statement from [Tradesperson 2]. The hours worked on the premises has been detailed in his email of 13 February 2023. He has noted that the majority of tools used were battery-powered (Makita tools) and other tools used, such as paint brushes, did not require electricity.
- In view of the work being undertaken on the premises, and the likelihood that there was increased power consumption resulting from it, it is reasonable for the 1 S.39(4)(a) and (b) power charges payable by the tenants to be reduced, for the duration of the building work.
- It is difficult to measure the likely usage with any precision. The tenants based their calculation by comparing earlier bills. However, their calculation is based on a period of five months, whereas in their calculation for compensation due to disruption from the building work, it is based on a period of 13 weeks.
- Taking the overall evidence into account, and noting the submissions of both parties, I consider it reasonable for there to be a reduction by $35 per month for the two months when most of the work was being undertaken (29 August to 22 October 2022). Therefore, after deduction of $70.00 from the total amount of $1,021.82 claimed by the landlord, the tenants are to pay the landlord $951.82 for the electricity charges. Compensation for tenants’ behaviour
- The landlord’s original application was for the tenants to remedy the breach concerning their poor communication, worsening situation managing their finances, and the use of the garage to smoke marijuana. The application was amended to seek termination of the tenancy. One of the reasons noted for terminating the tenancy was the landlord’s allegation that the tenants were using marijuana on the premises. The tenants have denied this claim.
- Following the first hearing, the parties came to an agreement and the tenancy was terminated. Therefore, the question of whether there were sufficient grounds for termination of the tenancy for breaches under the tenancy agreement or RTA no longer needs to be determined, since this tenancy has come to an end.
- The landlord has subsequently claimed compensation resulting from the tenants’ behaviour. In the context of this application, the Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
- In this case, while noting the concerns expressed by the landlord, and the evidence produced in support, including the witness statements, I find there are insufficient grounds for compensation, since the loss flowing from the alleged breach has not been established. The amount sought in compensation is $3,000.00. The landlord has indicated that this was based on their other tenants (from the downstairs premises) leaving, the mental consequences and financial loss. While acknowledging this has been a difficult situation for the landlord, the link between the alleged breach and claimed financial loss from the tenants’ behaviour has not been established. Therefore, the landlord’s claim for compensation arising from the tenants’ behaviour is dismissed.
- The landlord has also indicated that compensation ought to be awarded due to the tenants’ bullying behaviour towards [Witness 2], who was managing the property at the time. This is said to have occurred when [Landlord 1] was taking potential tenants for viewings of [redacted], being the property below the tenants’ property, which is also owned by the landlord.
- The landlord also notes the incident when police were called to the premises on 22 December 2022 while [Witness 1] was doing gardening. The landlord refers to the tenants’ retaliatory behaviour in terms of their approach to the power bills, rent and repairs.
- In response, the tenants deny that they have been bullying or anti-social in their behaviour. The tenants have explained the reasons for calling the police.
- Having considered the evidence overall, the grounds for compensation arising from these incidents are not met. While accepting that both parties felt aggrieved by these incidents, the tenants’ reaction, on each occasion, do not amount to any specific breach of their responsibilities under the RTA. Therefore, the landlord’s claim for compensation is dismissed. However, these incidents are further considered below with reference to the tenant’s claim for exemplary damages. Tenants’ application: 4477022 Breach of quiet enjoyment
- The tenants claim compensation for disruptions due to building work undertaken by the landlord on the premises. They state that from 29 August to 28 October 2022, they were unable to use their lounge, kitchen and at least one of the entrances to the house due to dust and loud noise from power tools. They have provided video and photographic evidence in support. It is also claimed that the building work has resulted in a breach of quiet enjoyment and therefore, exemplary damages are sought.
- The tenants refer to other instances where they felt their quiet enjoyment had been breached. This includes the landlord’s behaviour regarding their rent and electricity charges, and the landlord’s social media posts after the tenancy ended.
- Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 2 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 3 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.
- Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded. 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." 4
- In terms of breaches arising from the building work, at the beginning of the tenancy, the parties addressed the anticipated building work. In the tenancy agreement, it is noted that the landlord needed to carry out immediate work to the main living room sliding door. The work included removing the sliding door, for up to one week or more, for waterproofing. The exterior deck also needed to be removed and new cladding added.
- The landlord has explained their understanding was that this work would take two weeks, however, for various reasons, the work took longer. The landlord provided a $50.00 per week reduction in rent and considers this more than covered the disruption, noting that the tenants had communicated acceptance of this offer. The rent summary shows the rent reduction was for 9 weeks.
- Both parties have provided evidence concerning this issue, which has been considered. In view of the nature and duration of the disruption, I consider that the tenants ought to be compensated further for the interruption in their use of the premises resulting from the building work. The level of compensation requested, of a 25% rent reduction, is not supported by the evidence.
- As recorded in the tenants’ application, and as confirmed in the rent summary provided by the landlord, the tenants have already had a $50.00 per week reduction in rent for 9 weeks ($450.00). Taking into account the nature of the disruption, the likely duration and frequency, it is reasonable that the tenants are compensated a further $300.00 for this period ($33.33 per week). This amount is 2 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 3 Residential Tenancy Law in New Zealand S. Benson (2018) 4 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. awarded above. The additional three weeks claimed for waterproofing work is not included, as the disruption from this work was more limited.
- The tenants claim for exemplary damages arising from this breach is not supported, as the level of disruption does not amount to harassment. The building work was anticipated, and while it took longer than expected, the reasons for its duration have been explained and much of it was outside the landlord’s control. Therefore, the tenants’ claim for exemplary damages arising from the building work is dismissed.
- The tenants claim that there has been a breach of their quiet enjoyment arising from the landlord’s behaviour regarding their rent and electricity charges is not accepted. The tenants were behind in their payments and therefore, it is reasonable for the landlord to communicate with them and seek a plan for payment. The correspondence provided in evidence does not indicate a pattern of behaviour that amounts to harassment.
- The tenants also refer to the landlord’s comments on social media following the ending of their tenancy and claim such comments amount to harassment. While I accept that the tenants found these comments upsetting, this does not demonstrate a pattern of behaviour directed towards them that reaches the level of harassment. Unlawful entry
- [The tenant/s] claim the landlord has entered the premises without consent or notice. This claim relates to the incident on 22 December 2022, when [Witness 1] was on the property.
- Under section 48 of the RTA, 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. 5 If a landlord enters the premises in contravention of section 48, this is an unlawful act for which exemplary damages may be awarded.
- I have considered the extensive evidence and submissions provided by both parties on this issue. I have taken particular note of the oral evidence of [Witness 1] and the tenants, the video footage submitted by the tenants, and the documentary evidence. [Witness 1] has explained the reasons he was on the premises, and what occurred when one of the tenants approached him. He denies acting in a threatening manner, as claimed by the tenants. He also denies demanding to carry out a formal property inspection. 5 See section 48(1) and (2) of the RTA
- Overall, I found [Witness 1]’s explanation to be credible, and I accept that he was on the property for the purpose of undertaking gardening work relating to the property below the tenants’ premises. [Witness 2] has also explained the reasons why she had asked her father to do the gardening, after she secured new tenants for the property below. She had difficulties finding a gardener to do the work at that time of the year and so, as a last resort, asked [Witness 1] to tidy up the garden before the new tenants moved in.
- The video evidence does not show [Witness 1] acting in a threatening way while he was on the property. [Witness 1] accepts that he was holding a gardening tool when approached by the tenants. He denies waving this hand tool in a threatening manner, as claimed by the tenants. He did not enter the house and remained in the garden, and was not at the premises to carry out an inspection.
- While the police attended, no further action resulted, as confirmed in the police report. It seems that any communication issues [Witness 1] had with the tenants at the time of the incident may have resulted from his difficulties in hearing.
- I have also noted the evidence of [Witness 3], mother of [Tenant 1], who did not witness the event, but had a telephone call from him on the day. She has noted that her son felt upset and stressed, and overwhelmed. I acknowledge that, from the tenants’ perspective, they were unhappy with the situation, and their reaction to [Witness 1] being on the premises, including the alleged concerns for their son, is noted.
- Having considered the evidence overall, and the submissions of both parties, I find that, on this occasion, as [Witness 1] was undertaking gardening for the property below, which was vacant, notice was not required for this area. The landlord’s evidence regarding the layout of the property shows there are three rental properties with some common areas. It seems there was a need to access the bin, located alongside bins for the other properties, to dispose of garden waste. This would appear to be where [Witness 1] was when approached by the tenants.
- It is evident that [Witness 1] was at the property for a legitimate purpose, at the request of the landlord who owned the property below. The landlord has provided supporting evidence of the condition of the garden and of the work being undertaken to the property below, in readiness for new tenants. This work included cleaning, electrical work, dishwasher replacement, and touch-up painting. The landlord’s photographic evidence shows where the gardening work was being done.
- Overall, the tenant’s evidence does not establish that [Witness 1]’s entry on 22 December 2022, to carry out gardening work at the direction of the landlord, was in breach of the landlord’s responsibilities under the RTA. Therefore, this claim is dismissed. Viewings at the property below and timing of inspection
- The tenants have raised issues about the viewings arranged by [Witness 2], when managing the property on behalf of the landlord. They also questioned the timing of an inspection in December 2022. In her oral evidence, [Landlord 1] has detailed the times and dates of the viewings, the first of which was on 28 November 2022. The maximum number of viewings was six. She has explained that on one occasion, a couple who came for a viewing, had mistakenly gone upstairs.
- Overall, I found [Landlord 1] to be a credible and reliable witness. From her evidence it is clear there were not many viewings, and [Landlord 1] was entitled to be on the property below for the purpose of showing prospective tenants. Therefore, I find the tenants claim for a breach of quiet enjoyment from the viewings at the property below has not been established, and is therefore dismissed.
- In terms of the timing of the request for an inspection in December 2022, the evidence shows there were multiple attempts to arrange a suitable time for an inspection of the premises. The timing, around Christmas, does not appear to be ideal, however, no specific breaches have been identified in terms of the request made, in view of the circumstances. Notice ending the tenancy
- The tenants claim the landlord’s notice purporting not to continue the fixed term tenancy was unlawful and there was a forceful eviction from the premises. However, the landlord has subsequently withdrawn this notice and has explained that this was sent as a result of a misunderstanding.
- Taking the overall circumstances into account, and noting that the landlord withdrew this notice, I find there has been no forced eviction from the tenancy, as claimed by the tenants. This tenancy ended by mutual agreement following the first hearing. Accordingly, this claim is dismissed. Filing fee
- As neither party has been substantially successful, each is to meet the cost of their own filing fee.