What was the outcome of Tenancy Tribunal case 4533030?

The tribunal order states: Suppression orders are not granted.

How much money was awarded in case 4533030?

Compensation: Invalid termination no…: $391.69 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4533030?

The dispute type was not classified.

Where can I read the official tribunal order for case 4533030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9447429-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4533030?

The tribunal order states: Suppression orders are not granted.

How much money was awarded in case 4533030?

Compensation: Invalid termination no…: $391.69 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4533030?

The dispute type was not classified.

Where can I read the official tribunal order for case 4533030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9447429-Tribunal_Order.pdf.

Unit/Flat 89, 386 Papamoa Beach Road, Papamoa Beach, Tenancy Tribunal Case 4533030 — Tenancy dispute

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Reasons

Claims and awards in Tenancy Tribunal application 4533030 — net $412.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Invalid termination notice	$391.69	Invalid termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$412.13
Total payable by Landlord to Tenant	$412.13

Ms Mortimer rented a one bedroom cabin in the campground for $250 per week for approximately five years. She had also rented a cabin at the campground for a one year period in 2012 to 2013.

On 4 February 2023 the landlord gave the tenant 28 days notice to end the tenancy.

On 6 March 2023 the tenancy ended with rent $785.71 in arrears.

On 23 March 2023 the tenant filed an application in the tribunal seeking orders for exemplary damages for harassment, and compensation and exemplary damages for an invalid and retaliatory termination notice.

By Order of 1 June 2023, the tribunal determined that the accommodation arrangement was a residential tenancy under the jurisdiction of the tenancy tribunal.

The substantive hearing was held on 22 September 2023. Joe Van Duin and his sister Faith McMah (formerly Van Duin) gave evidence for the landlord. They attended in person.

Ms Mortimer the applicant attended by telephone conference from Auckland. Onus of proof

The applicant Ms Mortimer has the onus of proving her claim. This means that she must establish to the tribunal that the alleged breaches by the landlord have occurred to the civil standard of proof. This is proof on the balance of probabilities, that is, it is more likely than not, that the breaches occurred. Issues

The issues for the Tribunal to determine are: a. Did the landlord interfere with the tenant’s right to reasonable peace privacy or comfort in the use of the premises in circumstances that amount to harassment? b. Did the landlord take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises. c. Was the termination notice valid? d. Was the termination notice retaliatory?

If so, should compensation and/or exemplary damages be awarded? Did the landlord interfere with the tenant’s right to reasonable peace privacy or comfort the use of the premises in circumstances that amount to harassment?

The tenant says Faith Van Duin who was managing the campground for her brother, harassed her one day by threatening her and physically stopped her closing the door of her cabin and pulled some of her plants out of a pot on the balcony/accessway. She also says the landlord failed to provide her with a carpark close to her unit on flat ground when everyone else had their own carpark adjacent to their accommodation.

A landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. 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 sections 38(2) and (3) and Schedule 1A Residential Tenancies Act 1986.

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 landlord denies the allegations and presents a different version of events. Faith Van Duin says she went to the cabin to serve the tenant with a written notice regarding unpaid rent and eviction. She says she held the door so she could hand the notice to the tenant. The tenant insisted she would not pay rent until they got rid of Bevan from the campground. Ms Van Duin acknowledges she became agitated and pulled one plant from its pot. She says the tenant had been asked numerous times over a long period to remove a makeshift bamboo fence she had constructed at one end of the cabin because it blocked access and did not look nice, and to reduce the number of pot plants she had there.

The tenant’s version of events is directly in conflict with the landlord’s version of events. The tenant says other elderly residents of the campground are too scared of consequences for their own occupation in the campground to speak up. But I cannot ignore that there is a lack of any independent supporting evidence for the tenant to tip the balance to establish that the landlord’s behaviour was threatening as alleged, rather than a permissible act of delivering a notice. The removal of the plant from the pot was however inappropriate.

I am not satisfied that there was any inappropriate conduct by the landlord as regards the provision of a carpark. The tenant did not own a car but was looking at buying one because of a sore knee. There was a carpark available for her located along from her cabin, on a slight slope. The area directly in from of her cabin was a designated camping area on flat ground for tents so was not available to her. These areas were designated areas and had not changed.

The landlord was not obliged to provide a carpark for her on flat ground which understandably was being used for camping. So I find no interference by the landlord.

Exemplary damages are not awarded for the plant pulled from the pot. It was a one off incident that does not amount to harassment. This claim is therefore dismissed. Did the landlord fail to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises?

The tenant Ms Mortimer says the landlord failed to ensure she was able to live peacefully and safely in the cabin because they failed to stop other occupiers of the campground harassing her. In particular, she says a young man Bevan harassed her, and other campers annoyed her with the noise they made while camping alongside her cabin, for example by their car doors slamming noon and night. She says it made her feel unsafe and fearful.

There is an obligation on a landlord to take all reasonable steps to ensure that none of the landlord’s neighbouring tenants cause or permit any such interference of the tenant’s use of the premises. See section 45(1)(e) RTA. Failure to comply with this obligation does not however give rise to an award of exemplary damages.

I am satisfied that the landlord did listen to the tenants’ complaints, address them with the people complained about, and attempted a resolution of the conflicts that arose due to living in close proximity in a campground. This obligation is not an absolute one. A landlord must take what are called reasonable steps.

I accept that after the landlord spoke with Bevan he used a different route the majority of times when walking to the ablution block, albeit not always. Eventually he was asked to leave the campground and did so, even if not as soon as the tenant would have liked. The lack of any corroborating evidence as to allegations made about Bevan’s behaviour also adds to this claim not being proved.

The context is also relevant. The law was changed in 2010 to include accommodation within campground for stays longer than 50 days (section 5(1)(ta) RTA). Since then the landscape has changed. There is a lack of housing for people renting. This was exacerbated when Covid hit. It meant that more people were living in close proximity for longer periods within campgrounds.

Coupled with this, the tenant may have had unrealistic expectations of living in a campground. While she was in her early 70s she was not living in an elderly retirement village where she could expect noise to be at a minimum and campers not located adjacent to her cabin. The reality was that she was living in a campground consistent with people of varying ages living in close proximity. The nature of this mixed use accommodation must be taken in to account. There is also some doubt as to whether the campers she complains of were ‘tenants’ of the landlord.

For all these reasons the claim is not proved and is dismissed.

Was the termination notice valid?

The termination notice gave 28 days notice without any reasons. A landlord must give at least 63 days notice or 90 days notice to end a tenancy in the specified circumstances stating the reason– see sections 51(1) and (2) RTA. If a landlord seeks to end a tenancy for rent arrears, then an application for termination must be made to the Tribunal. It was not. So the termination notice is invalid.

An invalid termination notice is not an unlawful act as defined under the Residential Tenancies Act 1986 for which exemplary damages might be awarded. The question then is what compensation should be awarded as a result of this breach? What loss has the tenant suffered from this failure to give adequate notice with reasons?

The tenant claims moving costs of $937.00, her first week’s rent payment at her new tenancy of $490.00 and the new bond payment of 4 weeks rent of $1960.00. She says she should have the rent and bond paid because if she had stayed at the current tenancy she would not have had to make these payments which she is now repaying to Work and Income New Zealand over time.

The landlord says the tenant would have had to move out anyway, but just at a date later than the 28 days notice given, so she would have incurred the moving costs regardless. That is incorrect. Termination of a tenancy by notice is limited to specific grounds under section 51(1) and (2) with reasons, which include for example, where there is an unconditional agreement for sale of the premises; a family member is moving in to the premises; the premises are to be demolished or the premises are to be extensively renovated. None of the specific grounds apply in this case. So the landlord could not have terminated the tenancy by notice.

On the other hand, had the landlord applied to the tribunal for termination of the tenancy for rent arrears, then a termination order might have been made. The tenant was 21 days in rent arrears when she moved out. It is not open to a tenant to ‘take the law in to her own hands’ and refuse to pay rent when she has a complaint with the landlord.

Having regard to all these factors, I award the tenant’s moving costs of $973.00 which are proved. The tenant would have been paying rent of $250 anyway so she has only incurred the loss of the difference in rent being $240 which I award. As regards the bond she has had the benefit of the landlord’s indulgence in not charging a bond. The bond money is not a loss because it remains the tenant’s money unless the new landlord has a valid claim against it when that tenancy ends. Rather, the requirement to pay a bond is a timing cashflow issue rather than actual loss.

The tenant is in rent arrears and has not paid rent owed of $785.31 which is not disputed. So I set off this amount from compensation allowed of $1,177.00 (moving costs $937 + rent $240), and award $391.69. This is also consistent with the substantial merits and justice of the case. See section 85 RTA.

Was the termination notice retaliatory?

Where the giving of a termination notice by the landlord is motivated partly or wholly by an assertion of rights or a complaint by the tenant, it is of no effect and is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 54 RTA.

Any application for such a declaration must be made within 28 working days of receipt of the notice. Ms Mortimer received the termination notice on 4 February 2023 and this application was made on 23 March 2023 approximately

5 months or 46 days later.

The District Court has held that the 28 day filing period is mandatory. See Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.”

In Burrows v Lindsay Richards [2021] NZTT Tauranga 4280243, 4285621 the Tribunal dismissed a retaliatory notice application where the application was filed 15 days late.

In this case the delay by the tenant in filing her claim was more significant being 46 days. I have carefully considered if the time period should be extended. Ms Mortimer does not use or have access to email. She says the delay was caused by Tenancy Services failing to post her the application forms so after 2 weeks she picked up the forms from the Citizens Advice Bureau in Tauranga. She then had difficulty paying the application fee because it could not be paid by phone as the outdated form said she could. Instead she had to travel to a Westpac Bank to lodge the payment.

Even accepting that Ms Mortimer does not use email, and had the initial difficulty in accessing the forms and paying the filing fee, at most this would account for approximately 21 days. The overrun was not one or two days but approximately 18 days. So I do not consider it appropriate to extend the filing period. I am therefore barred from hearing this application. It is dismissed.

Filing fee: Because the tenant has been partially successful, I consider it appropriate to refund the filing fee. See section 102(4)(b) RTA.

Suppression: The tenant seeks a suppression order of her name and identifying details. She has been successful to a very limited extent which does not justify suppression. I consider the public interest weighs in favour of publication. See section 95A RTA.

Reasons

Claims and awards in Tenancy Tribunal application 4533030 — net $412.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Invalid termination notice	$391.69	Invalid termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$412.13
Total payable by Landlord to Tenant	$412.13