What was Tenancy Tribunal case 4511899 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4511899?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4511899?

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

Where can I read the official tribunal order for case 4511899?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327635-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4511899 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4511899?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4511899?

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

Where can I read the official tribunal order for case 4511899?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9327635-Tribunal_Order_Redacted.pdf.

20 Carina Crescent, Torbay, Auckland 0630 Tenancy Tribunal Case 4511899 — Harassment

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Barfoot & Thompson Property Limited As Agent For Geoff & Tyrena Bartholomew must pay [The tenant/s] $660.00 immediately.
No further orders are made.

Reasons

Both parties attended the hearing.
The tenant application sought compensation and exemplary damages.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
The tenant claims were extensive. Much of the outcome of these would hinge on what occurred on and around 27 January 2023 after much of Auckland suffered a serious weather event and catastrophic flooding with nearly 300 mm of rain falling in the city on Friday 27 January 2023.
This premises was badly flooded with minimal notice after a neighbouring stream burst its banks and rapidly inundated the split-level house. The tenants left with little opportunity to secure the premises and a significant loss of their possessions ensued due to water damage. For the landlord, significant damage has required major repairs that are still underway.
Two days after the flooding event the landlord gave a 7-day notice to terminate citing the provision for this per s 59 Residential Tenancies Act 1896 (RTA), that is that the premises was left uninhabitable after the 27 January flooding event. What is Section 59 – Destruction of premises?
Section 59 RTA applies to both fixed term and to periodic tenancies. Below are the important elements where the premises are destroyed or so seriously damaged as to be uninhabitable: a. The destruction or damage must not be the result of a breach of the tenancy agreement (obvious in this case) b. The premises must be destroyed, or so seriously damaged, as to be uninhabitable c. If so, the rent shall abate d. Either party may give notice to terminate the tenancy (the landlord not less than 7 days; the tenant not less than 2 days).
Before the Christchurch earthquake sequence in 2010/11, the Tribunal seldom if ever had to decide applications made under section 59 RTA. Despite the scale of the destruction caused by the earthquakes, relatively few applications for termination of tenancies were made.
For some landlords and tenants, the destruction caused by the flooding events raise similar issues to those that came before the Tribunal after the Christchurch earthquakes.
The first issue for the Tribunal in these cases is whether premises were destroyed, or so seriously damaged (in whole or in part) as to be uninhabitable. The second issue is the degree to which rent should abate.
In this instance, the landlord ended rent liability immediately from the flooding event so no rent abatement need be considered.
The RTA does not define the word uninhabitable. But the Tribunal now has the guidance of District Court case law from the cases that were decided on appeal following the earthquakes both as to the meaning of the word uninhabitable and how the issue of rent abatement should be decided. The principles that emerge from the cases are these: a. Whether premises are uninhabitable will be decided on a case-by-case basis: there is no statutory definition or test of uninhabitability. b. The Tribunal will want to know what damage was caused to the premises by the flooding event and what effects it has had on the tenant. c. In making its finding on uninhabitability, the Tribunal should take a liberal approach. d. Uninhabitability should be assessed in the light of prevailing conditions and expectations of the particular community at the particular time. e. If services such as water, sewerage and electricity are cut off the premises will probably be considered uninhabitable for the period the services are unavailable. f. The Tribunal must have regard to the personal circumstances of the tenants. Are they young and/or robust and better able to cope with what has happened? Or are they vulnerable, elderly or a family and less able to cope?
With the benefit of time since, further evidence can be gleaned from insurance assessment reporting. These confirm what seems apparent from the supplied photos, the premises was badly damaged. Anny remediation was going to take an extended time and be significant.
While the desire of the tenants to receive some official confirmation of uninhabitability was understandable, the overwhelming demands on such agencies at the time from the disaster makes such an eventuality challenging.
Having considered the evidence and submissions, I concur with the initial assessment that the premises were uninhabitable and the serving of the notice to terminate, while placing further pressure on already fraught tenants, was justified.
Given this determination, I make no orders pertaining to illegal or retaliatory termination. Other claims
The remaining claims are considered in two parts; those preceding the flooding, and those from and after the flood. Prior
The tenancy commenced 2 April 2022. The owners use a property manager for this property but self-manage the neighbouring property. The tenancy agreement required the landlord to maintain the lawns. His presence around the properties was regular, mostly in the later part of 2022 and typically without the prior notification to the property manager. Notice was typically lacking or entry requested verbally. He never entered inside. The visits tended to be practical and outdoor task oriented. I have considered the hosing of the dirt on the walls as raised by the tenants.
The owner had a storage area under the house where he kept surplus or recycled building materials. These were in place at the inspection and commencement of the tenancy.
The owners were also directly involved with repairs of vertical blinds. A series of messages between the owners and the tenants regarding this were provided. It took a number of attempts to affect the repair and the tenants advised the blinds were never great. In isolation the issue was not significant and having considered the sequence and impact I decline to make any compensation order pertaining to any failure or reduced performance of the blinds.
An active owner when a property manager is engaged as agent can make for confusion regarding roles and communication. That is the case here but I do not find that a retrospective revisit of the interactions during 2022 via this application evidences breaches nor grounds for compensation. 27 January onwards
On the afternoon of 27 January 2023 the heavy rainfall caused the neighbouring stream to rise rapidly. With minimal notice the tenant evacuated to the neighbours with her children. Her husband was away at work. During the next few hours the water rose and badly flooded the premises. The water then receded, leaving the premises and possession badly damaged.
The property manager and owner attended that day. Essentially, from the submissions heard, I consider the owner entered the premises and, with the help of others, commenced mitigating the damage. This involved removal of all the flooring and moving of the tenants’ possessions to facilitate this. I accept the landlord had a right of entry at this time as this was clearly an emergency. (refer s 48 RTA). I can equally understand his concern on the building damage.
Concurrently, the working tenant returned and commenced salvage activities. He appeared to work in parallel with the landlord, concentrating on the garage contents while the owner worked upstairs in the living area. The tenants’ possessions in the living area were mostly damaged and removed – dumped in an area used by the landlord for dumping the flooring and other items removed. The tenant submitted this was done by mutual agreement 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 s 38(3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 s 109(3) RTA).
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" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary 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.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
As already indicated, I do not find that prior to 27 January 2023 the landlord interfered with the tenants’ quiet enjoyment.
I take a different view with regards the immediate aftermath of the flooding event. It was totally appropriate for the landlord to enter the premises. However, I find that the subsequent remedial activities took place to an extent and in with such timing and impact that I consider he did unreasonably interfere with the tenant’s rights at that time. Once the premises were secured and assessed, the subsequent prioritisation of building damage mitigation to the extent of moving the tenants’ possession to facilitate this did interfere with the reasonable privacy of the tenant in their use of the premises. In particular I am mindful of the removal of all flooring and subsequent use of dryers in the building.
The drying continued until two days later (Sunday) when they were removed. It appears they were removed as the owner received appropriate advice from their property manager regarding the encroachment while the tenancy continued. It would seem logical to link the constraints on the owner at this time with the notice to terminate served that same day. The short notice period available per s 59 reflects the unique demands in situations such as this flooding event.
The parties were having disagreements regarding certain premises matters such as dumping of items for disposal and removal of the tenant’s damaged car. Having considered the evidence and submissions, I consider it more than likely the tenants were told they should dump their items for disposal in the same place as the flooring that was removed for disposal. It seems consistent that the tenant recollection of the plan to have a skip placed for the later removal.
When a disagreement about the placement of the skip ensured it seems the expectation on the tenants changed and the property manager required them to sift through the dump pile and remove their items as part of the tenancy exit. The tenants undertook this with the assistance of some civil defence volunteers with the inorganic waste left up at street level (off the premises).
I consider it unfortunate that the property manager at that time asserted such a requirement and then threatened to withhold a portion of the bond. In an already stressful situation this amplified emotions. I acknowledge the subsequent return to the tenants of the full bond but the process created additional angst that I consider should have been avoided. The undisputed rent abatement for the notice period after the event was a better example of reasonable acton.
I do not consider the breach of quiet enjoyment to be anywhere near the threshold to constitute harassment and no unlawful act under s 38 occurred. I do however consider some compensation is appropriate to reflect unnecessary impacts on the tenants. There was an offer made by the landlord at the hearing but was not accepted and has no bearing on my own determination of any compensation figure.
Having considered the unfortunate events and the respective actions and impacts for each party I have determined a one-off compensation amount based on one week of rent is appropriate compensation for the tenant adverse experiences that were breaches by the landlord of s 38(2). I award the tenants $660.00. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
In this matter, the tenants have not enjoyed sufficient success to have their filing fee returned, nor for suppression. That said, I have ordered suppression on my own initiative after having considered the application and the circumstances that prompted it. This was not a frivolous application. Any public interest pales compared to the interests of the tenants who remain renting at present.
Time has provided some perspective for all and I appreciate the engagement all attendees at the hearing in allowing respectful consideration of the events and impacts from both sides.

Tenancy Tribunal case 4511899 — Harassment at 20 Carina Crescent, Torbay, Auckland 0630

At a glance

Tenancy Tribunal case 4511899 — Harassment at 20 Carina Crescent, Torbay, Auckland 0630

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions