What was Tenancy Tribunal case 4521997 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 4521997?

Compensation: by consent - cost of s…: $5,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4521997?

The dispute type was not classified.

Where can I read the official tribunal order for case 4521997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9371679-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4521997 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 4521997?

Compensation: by consent - cost of s…: $5,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4521997?

The dispute type was not classified.

Where can I read the official tribunal order for case 4521997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9371679-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4521997 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4521997 — net $5,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: by consent - cost of storage	$5,200.00	by consent - cost of storage
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,220.44
Total payable by Landlord to Tenant	$5,220.44

Claims and awards in Tenancy Tribunal application 4521997 — net $5,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: by consent - cost of storage	$5,200.00	by consent - cost of storage
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,220.44
Total payable by Landlord to Tenant	$5,220.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Vesta Property Management 2021 Limited must pay [The tenant/s] $5,220.44 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing in held August 2023. The landlord was represented by Ms McCallum and by Mr Woodbridge, who has been acting as a property manager and filling in for Ms McCallum.
This tenancy started in April 2022 and there has been conflict between the parties since the tenancy started. The parties both filed applications last year. On 25 July 2022 I dismissed the landlord’s application to terminate the tenancy on the grounds that the tenants caused substantial damage. I made work orders in favour of the tenants and the matter was adjourned. The landlord did not attend the second hearing.
I made a final order on 21 December 2022. Work orders were made in favour of the tenants. I also ordered that the landlord pay a significant sum of compensation and exemplary damages because of breaches by the landlord. The landlord appealed this decision, and the appeal was dismissed by the District Court. The landlord has now paid the money ordered to the tenants.
In March 2023 the landlord filed its second application because they said the tenants had denied them access to complete the work orders made in December. During the hearing the landlord submitted I should terminate the tenancy because of the difficulties gaining access. The landlord had not served any 14 day notices. I declined to terminate the tenancy.
The matter was adjourned because the tenants had been served a 90 day notice to end the tenancy because the tenancy premises were being sold and I wanted confirmation the notice was valid. The tenants filed a cross application in April and the matter was set down for a hearing. The landlord withdrew the notice to terminate the tenancy in June. The sale is “on hold”, although the legal status of this is not clear from the evidence I heard at the hearing.
At the hearing in August 2023 the parties agreed that the four of the five work orders I made in December 2022 have been complied with. The tenants said there is still some rubbish in the hedges and the garden beds, but otherwise most of the rubbish has been taken away. The parties agreed to more work being carried out at the tenancy premises.
The tenants have applied for compensation and exemplary damages on many grounds including that the landlord breached the work orders, gave a retaliatory notice, gave notice when it was not entitled to give notice, entered the tenancy premises unlawfully, and for breach of quiet enjoyment. A number of claims were withdrawn at the hearing, including those relating to minor changes, unlawful payments, and tenancy agreement breaches. The landlord’s application is essentially a defence on the grounds that they have not been allowed access. The questions the Tribunal has to decide are: • Has the landlord proved there was an assault? • Did the tenants deny access? • Did the landlord breach the work orders and fail to maintain after the

December hearing?

• Did the landlord come into the house without giving proper notice? • Did the landlord give a retaliatory notice? • Was there discrimination?

• Was the landlord was entitled to give the 90 day notices? • Has there been a breach of quiet enjoyment?

Has the landlord proved there was an assault?

The landlord has not made any claims because of an assault. However, the landlord’s defence to every claim made by the tenants is that there was an assault on Mr Woodbridge just after the tenants moved in and this has prevented work being done at the house. The tenants absolutely deny this happened. They said the police have never talked to them about an assault during this tenancy. No charges have been laid.
The landlord has filed two applications for termination of the tenancy and served two 90 day notices to end the tenancy. None of these have relied on an assault as a ground for ending the tenancy. At each hearing I have asked the landlord to provide proof. During the latest hearing in August 2023 I allowed the landlord to contact the police during one of the breaks because he said the police were happy to email through information about the assault. Nothing was received.
I am not persuaded by this information that there was an assault on Mr Woodbridge.

Did the tenants deny access?

The landlord claims the tenants have not allowed them entry to the premises when they were entitled to enter. A landlord may enter the premises during the tenancy 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) RTA.
The landlord provided me with copies of emails arranging access for them and for tradespeople. There have been many occasions when the tenants have changed the arrangements, often at short notice. Sometimes there are genuine reasons, such as the family is sick. Other times the tenants have not replied in time to confirm access is agreed. The RTA allows landlords to enter the tenancy premises – with tradespeople – if proper notice is given. In other words, the landlord does not have to get the tenants’ agreement to enter the house and to do work. When I asked the landlord why they did not just go to the house as arranged I was told Ms McCallum never goes into a tenancy premises without the tenants there.
I have not found any evidence in the supporting documents that proves the tenants stopped the landlord or tradespeople from coming to the house. There is evidence they have changed their minds, and that they have not always replied soon enough for the landlord to finalise entry. However, the work could have been carried out because proper notice was given, even without the tenants at the house. I find the tenants should not be penalised because of the way the landlord chose to arrange access. This claim is dismissed. Did the landlord breach the work orders and fail to maintain the house after the

December hearing?

On 21 December 2022 I made work orders against the landlord. The tenants claim the landlord has breached the work order because work was completed in June and July 2023, about 5 months after the completion dates specified in the work orders. The landlord is also required to maintain the premises in a reasonable state of repair. See sections 45 and 108 RTA.
I am not persuaded I should allow more compensation. This is because I anticipated a delay when I made the order in December and allowed a rent reduction of $160 a week until the work orders were completed. This means the tenants have been compensated each week for the delay and the loss of amenity. I also note the landlord agreed to pay storage costs for a year at $100 a week, because the tenants have not been able to move all their belongings into the house while waiting for work to be carried out. The claim for compensation is dismissed.
The tenants have also claimed exemplary damages. Breaching a work order without reasonable excuse is an unlawful act, for which exemplary damages may be awarded up to a maximum of $5,000.00. See section 108(2A) and Schedule 1A RTA.
I am not persuaded I should allow exemplary damages. This is because there is evidence that a builder was organised to start the work on Monday 6 March 2023. The tenants asked to change the time and start date. The landlord could have insisted that work start because proper notice had been given. Instead, the builder insisted the tenants sign a contract before work would commence. The contract had a number of stipulations, including that the tenants agree to pay $600 per day for any delays caused by them. The tenants got advice from their lawyer who told them not to sign. The builder refused to start work.
I find the landlord took steps to comply with the work orders and there was reasonable excuse for the delay. I also note that the four of the five work orders were completed in late June/July 2023 and that a significant amount of rubbish has been removed.
I decline to make new work orders. I have not received any new evidence from the tenants as to the work that it still required, such as photos. The parties were communicating well by the end of the hearing in August, and a number of agreements were made between the parties for access and work to be done. Did the landlord come into the house without giving proper notice
The tenants claim the landlord has twice entered the premises without consent or notice. See section 48(1) and (2) RTA.
The first time was last year, when Ms McCallum gave notice to enter, and Mr Woodbridge came to the house with her. I find this was not a breach because proper notice was given.
The second time was in February 2023. The tenants are correct that the landlord did not give enough notice that Mr Woodbridge would be at the house with a builder. The landlord’s submission is that they never left the public footpath.
This is the tenants’ claim to prove. The tenants were not home and their grown up son, who was there at the time, did not give evidence. It is not a breach for the landlord to go to the house and ask for access by consent. This claim is not proved and it is dismissed.

Did the landlord give a retaliatory notice?

On 10 February 2023 the landlord gave the tenant a notice ending the tenancy on 16 May 2023. The tenant claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or the RTA. Tenants are required to file their applications within 28 working days of receiving the notice. See section 54(1) RTA.
I find the tenants had until 22 March 2023 to file their application. It was filed later than that, on 14 April. The tenants submitted it was not fair because they did not know about the time limit. However, I find this is not a time frame that the Tribunal can vary, and this claim is dismissed.

Was there discrimination?

The tenants claim the landlord discriminated against them. A landlord must not discriminate against a tenant in relation to the grant, renewal, variation or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) RTA.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation. The tenants did not have any evidence to support a claim under any of these prohibited grounds. This claim is dismissed.

Was the landlord entitled to give the 90 day notices?

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) RTA.
Section 51(2) RTA provides that a landlord may terminate a periodic tenancy by giving at least 90 days’ notice if the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession, or if the landlord is not the owner of the premises and the landlord’s interest in the premises is due to end.
The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
The notice on 10 February 2023 was given because of the owner was required to give vacant possession under an unconditional agreement for the sale and purchase of the tenancy premises. At the hearing held in March 2023 I adjourned so the landlord could ask its lawyer for proof there was an unconditional sale, and that vacant possession was required. This was important because the tenants said they were the only tenants out of a row of houses all being sold to be given notice to terminate the tenancy.
The lawyer replied to the Tribunal as requested and said there was a mistake:
The notice given on 10 February was clearly the wrong notice. There was no requirement for vacant possession in the sale and purchase agreement. This was the only notice served on the tenants. I find the landlord served the wrong notice on the tenants.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. 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 s 109(3) RTA).
I am not persuaded I should allow exemplary damages. The landlord’s submission at the hearing is that they discussed the situation with their lawyer and the lawyer recommended that the tenancy be terminated. According to the landlord the lawyer “made a mess” of the notice given to the tenants, which is why the landlord subsequently withdrew it and got on with the repairs. I do not find the landlord, who was acting under advice, intentionally. The claim for exemplary damages is dismissed.

Was there a breach of quiet enjoyment?

The tenants claim the landlord has harassed them. 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) RTA.
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.
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.
The same considerations for exemplary damages apply here. As to effect, the tenants’ submission is that this whole battle with the landlords, and the Tenancy Tribunal process has been traumatic. They described their experience since the start of the tenancy as mentally and physically draining. At one point they said this has broken them.
I also have to consider the landlord’s intention. The landlord submitted it had been equally difficult dealing with the tenants, and this had caused delays, extra emails, and more engagement. I have read the emails and documents provided by the landlord in support of its defence to this claim. I can from the emails that the tenants have changed the arrangements many times, and this has been challenging for the tradespeople and the landlord.
I note the agreed evidence the landlord has made some large payments as compensation for breach of quiet enjoyment since the hearing in June 2023.
Taken together, I am not persuaded there has been harassment by the landlord since December 2022. This claim is dismissed. Other orders
The tenants applied for compensation to pay their lawyer and to pay for a report produced at the last hearing. I declined to make an order for the report in December 2022 and gave reasons. I explained to the tenants at the hearing that I can only allow lawyer’s costs if the lawyer attends the hearing.
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because the tenants are the most successful party.

Tenancy Tribunal case 4521997 — Tenancy dispute

At a glance

Tenancy Tribunal case 4521997 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

December hearing?

Has the landlord proved there was an assault?

Did the tenants deny access?

December hearing?

Did the landlord give a retaliatory notice?

Was there discrimination?

Was the landlord entitled to give the 90 day notices?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

December hearing?

Has the landlord proved there was an assault?

Did the tenants deny access?

December hearing?

Did the landlord give a retaliatory notice?

Was there discrimination?

Was the landlord entitled to give the 90 day notices?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions