What was Tenancy Tribunal case 4537989 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 4537989?

Compensation: Garage: $350.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Compensation: Window: $350.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rubbish Removal: $310.00 awarded to landlord

What type of tenancy dispute was case 4537989?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4537989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9174395-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4537989 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 4537989?

Compensation: Garage: $350.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Compensation: Window: $350.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rubbish Removal: $310.00 awarded to landlord

What type of tenancy dispute was case 4537989?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4537989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9174395-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4537989 — Exemplary damages

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Reasons

Claims and awards in Tenancy Tribunal application 4537989 — net $1,910.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$310.00		Rubbish removal
Compensation: Garage		$350.00	Garage
Compensation: Window		$350.00	Window
Compensation: General damages		$500.00	General damages
Exemplary damages: Harassment		$1,000.00	Harassment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$310.00	$2,220.44
Net award		$1,910.44
Total payable by Landlord to Tenant		$1,910.44

Both parties attended the hearing in person on 7 July 2023. Background

The parties signed a residential tenancy agreement for a fixed term from 7 November 2022 to 7 May 2023. Both parties agree that the tenants moved in on this date. The rent was $600.00 per week.

At the hearing, the tenants produced a copy of a tenancy agreement for a fixed term from an earlier date, 7 September 2022. This only named one of the tenants and appears to have been superseded. I am satisfied that the parties’ intention was to create a fixed term tenancy from 7 November 2022 to 7 May 2023.

On 2 April 2023 the tenants applied to the Tribunal for breach of the healthy homes standards, compensation, and exemplary damages.

On 21 April 2023 the landlord applied to the Tribunal for the cost of repairs, rubbish removal, lawn mowing, copying costs, and exemplary damages. Tenants’ Application Vacant possession

The tenants said that soon after they moved in they found rubbish in the garage, including used diapers, smashed glass, a homemade spear, shanks (knives), plastic bags used for storing drugs, other drug paraphernalia, and a bullet. The tenants assumed the items belonged to previous tenants.

The landlord said the garage was clean at the start of the tenancy. At the end of the tenancy, the tenants left a lot of rubbish in the garage including several supermarket trolleys. The landlord said she did not use the garage, the previous tenants did not use the garage, the garage was not part of the tenancy, and she did not know where the items complained about came from.

There was nothing in the tenancy agreement precluding the tenants from using the garage; the tenancy address details do not make any distinction between the use of any part of the property. The tenants said they had express permission from the landlord to use the garage. I find on the balance of probabilities that the garage was included in the tenancy.

I do not consider that the healthy homes standards are relevant. The issue is whether the landlord provided the premises in a reasonable state of cleanliness and with vacant possession. I consider that vacant possession requires the property to be clear of the landlord’s belongings and those of previous occupants.

I find that the tenants were not provided with vacant possession at the start of the tenancy, in breach of section 36 of the Residential Tenancies Act 1986 (the Act). There was a need to clear out the garage, which was full of rubbish and potentially hazardous objects. The tenants took suspicious items to the Police. There would have been inconvenience and distress caused by the nature of the items found in the garage. I award $350.00 in compensation for the failure to provide vacant possession of this area.

The tenants also said they spent a few hours each day after work cleaning for about a week. This included cleaning the house, including all vents and hoods, and they found a strange, sticky residue. However, the photographs taken by the tenants at the viewing on 6 November 2022, and on 14 November 2022, do not obviously show a need for cleaning inside the house. Window

The tenants said a window at the front of the property overlooking the road could not be closed during the tenancy and the windowpane was dropping out of the frame. Shortly after they moved in, they opened the window to do some cleaning and the latch broke off. The tenants notified the landlord.

The landlord said the tenants broke the window when they lost the key to the ranch slider / sliding door and re-entered the property through the window.

I consider it is unlikely the tenants damaged the window after losing the key. The tenants accepted they lost the key at the end of the tenancy, not at the start. It is also difficult to envisage how the damage shown in the photograph (the pane coming out of the framing, which would not fully shut, and the loss of the latch) could have been caused by someone climbing through.

I find on the balance of probabilities that the window was not maintained in a reasonable state of repair, contrary to the landlord’s obligations under section 45(1)(b) of the Act.

The window faced a busy road, and its poor condition presented a security risk to the tenants and allowed a draught. I note, however, that although the property was burgled during the tenancy, the criminals did not gain entry through this window. I award $350.00 in compensation for the landlord’s failure to maintain. Sliding door

The tenants said that the handle assembly on the sliding door was loose and fell off after a few days. They said the landlord gave them old parts to use to fix it. The tenants said they managed to reinstall the handle, but it was still loose and if hit with a hammer would have fallen off.

The landlord said the tenants had entered the property through the window when they lost the key and then took the handle to [redacted] for a replacement key. Subsequently they could not reinstall the handle, so the landlord had to put it back on. The landlord said she bought new parts and fixed it properly.

There is an invoice on file from [hardware store] for a “Yale handle window” but this is dated 4 April 2023, by which time the tenants had vacated the property. It is not clear that this invoice relates to the ranch slider door.

There is a conflict on the evidence about who fixed the sliding door and whether this resolved the issue. I am not persuaded the tenants removed the door handle deliberately, but equally I find it is not established that the landlord failed to fix the handle properly. No grounds for termination

The problems seem to have started when the landlord (with permission) came to the property on Friday 17 March 2023 to pick some grapes and discovered the tenants had stored black rubbish bags in the shed.

There were also issues with the payment of a weeks’ rent on or about Thursday 23 March 2023, as reflected in some of the text messages. The landlord said it was agreed that the tenants would move out on Sunday 26 March 2023. The landlord said this was in response to the tenants’ request to leave.

The tenants said that, on Monday 27 March 2023, the landlord used bolt-cutters to gain entry to the premises and moved their remaining belongings, including a couch and a modem, outside. The landlord denied breaking the bolt to gain access. She said the photograph provided by the tenants showed her holding a garden implement, not bolt cutters. She denied moving the tenants’ belongings.

A video was shown at the hearing of an altercation between the landlord and the tenants on 27 March 2023. The landlord can be heard saying the tenants had agreed to move everything out by Saturday and it was now Monday. She also can be heard asking them to leave.

I have reviewed the text messages provided. These are somewhat disjointed, and difficult to piece together chronologically. However, I note the following texts from the landlord: • Friday, 17 March 2023: “I give you one week to clean up my property!” • Friday, 17 March 2023: “Why you left so many rubbish in my property? You need clean all by next week! Other other [sic] you need moved out my property immediately!” • Thursday, 23 March 2023: “Can you moving out tomorrow? Otherwise will be going to tribunal. You not pay can not living on site. You need moving out immediately”. • Thursday, 23 March 2023: “Today I am I formed [sic] you need moved out of my property ASAP! The rental not pay on time! The rubbish did not collection”. • Sunday, 26 March 2023: “You had moved out my property, you told me today will be give a key! Then you said key is lost! Now we need replace the key for $60! So you need pay it!”

In response to the landlord’s texts on 23 March 2023, the tenants requested a few more days to tidy the property and remove some rubbish.

The overall impression given is that the landlord was disappointed to find a large number of black rubbish bags at the property when she visited on 17 March 2023. This was exacerbated by a delay in payment of rent the following week. The tenants did what the landlord’s messages directed them to do – they moved out while protesting the legality of the landlord’s actions. By the end of Sunday 26 March 2023, most of their belongings had been removed from inside the house.

I do not accept the landlord’s evidence that the tenants agreed to leave before expiry of their fixed term. They were under the misapprehension (based on overseas tenancy laws) that they had 2 weeks to complete cleaning and removal of their belongings, but it is clear from their text messages that they were moving out immediately at the landlord’s request and believed the lack of notice was illegal. This was not a voluntary surrender of possession.

The landlord did not follow the correct procedure to end the tenancy and had no right to terminate the tenancy by notice. Her demands for the tenants to leave in a matter of a few days constituted interference with the reasonable peace, comfort, or privacy of the tenants in their use of the premises, in breach of section 38 of the Act. The tenants were living at the property with the benefit of a fixed term contract until 7 May 2023 and were under no legal obligation to leave.

It is difficult to see whether the landlord was holding bolt-cutters in the photograph taken on 27 March 2023. Given that the tenants had lost the key to the ranch slider door, which was their main entrance, and they had placed a bolt on the back laundry door, it is reasonable to assume the landlord would have had to remove the bolt to gain entry and open the ranch slider door from the inside. On the other hand, it is also possible the landlord obtained a replacement key for the sliding door. I am unable to determine whether the landlord used force to take possession. Exemplary and general damages

A breach of section 38 of the Act in circumstances that amount to harassment of the tenant is an “unlawful act’, for which exemplary damages of up to $3,000.00 may be awarded.

Harassment under section 38(3) is not defined in the Act, but in MacDonald v Dodds (District Court Hamilton, CIV-2009-019-001524, 26 February 2010) it was said to mean “to trouble, worry or distress” or “to wear out, tire out or exhaust”. Although it has been said that a single act of interference is unlikely to amount to harassment, I consider it can extend to a single act of sufficient seriousness (Birch v Otautahi Community Housing Trust [2020] NZDC 17667).

In her text messages the landlord insisted more than once that the tenants tidy the property or leave immediately, a demand repeated on 27 March 2023 when she came to the premises. The tenants said they also received many phone calls from the landlord while they were at work and an attempt was made to contact their employer about the alleged rent arrears.

The landlord’s conduct was directed at the tenants and intended to have an adverse effect on them. While the tenants argued back and, in some respects, gave as good as they got, the effect of the landlord’s unlawful conduct was that they had to leave about 6 weeks before their fixed term tenancy expired. The tenants said the stress also affected their own relationship. I am satisfied that the landlord intentionally committed an unlawful act.

There is a strong public interest in ensuring that landlords follow the correct procedures to terminate residential tenancies. The landlord could have served a notice to remedy on 17 March 2023, requiring the tenants to remove the rubbish bags. This could have been combined with an application to the Tribunal for termination pursuant to section 56 of the Act. The Tribunal is readily accessible to both landlords and tenants. Instead, the landlord demanded that the tenants leave when they did not remove the rubbish and, in her view, broke their promise. The same approach could have been taken to address any rent arrears. While the landlord says rent is still owed, no evidence was provided to establish any arrears. The records provided by the tenants show regular payments.

The landlord insisted on taking possession on 27 March 2023, despite a text message from the tenants warning that coming onto the premises would constitute trespass. Further, the tenants suffered the stress of having to move out over a few days while also going to work.

After considering the factors in section 109(3) of the Act, I find it would be just to award exemplary damages for harassment of $1,000.00. I also award the tenants $500.00 in general damages for the humiliation and emotional distress the landlord’s conduct caused over an intense, but short period of time.

The tenants provided photographs sent by the landlord on 27 March 2023, showing their belongings outside. The landlord denied removing the tenants’ belongings from the property and the tenants did say that, after their belongings were put outside, they decided they were not going to be responsible for disposing of them. I interpret this as meaning the tenants placed no great value on these belongings. There was no evidence provided to support an assessment of the second-hand value of these goods.

While the landlord was not entitled to remove the tenants’ goods from the property (section 33 of the Act) the tenants had some level of opportunity to safeguard and collect these belongings. Most of their property had already been packed away. I decline to award compensation or exemplary damages. Landlord’s Application Window

The landlord claimed $38.50 for the cost of repairing the front window discussed above. The landlord referred to a receipt from [hardware store] which includes $31.40 plus GST for a stay casement, together with several other items which appear unrelated. As noted above, a window handle was also purchased for $28.60.

For the reasons already discussed, I am not satisfied that the tenants carelessly damaged the window. The photographs provided tend to show that this was an older property with older furnishings and floor coverings. It is much more likely that the window needed repairs as a maintenance matter. Rubbish and furniture removal

The landlord claimed $310.00 for rubbish removal, based on an invoice from [rubbish collection company] for a trailer bin. Another invoice dated 16 April 2023 from an unidentified tradesperson was for $470.00 for lawn mowing, furniture disposal and trash disposal.

The tenants accepted that they had not disposed of their black rubbish bags. There were approximately 20-30 black rubbish bags requiring disposal at the end of the tenancy.

Tenants have an obligation to keep premises reasonably clean and reasonably tidy (section 40(1)(c)). By allowing the build-up of rubbish bags, the tenants breached this obligation. I award the landlord $310.00 for the cost of removing this rubbish.

I decline to award compensation for furniture disposal. It is likely this amount relates to the disposal of the tenants’ belongings, following the landlord taking possession, a step which I have found was unlawful. Lawn mowing

The landlord claimed $470.00 for work including lawn mowing. Contrary to the landlord’s submission, the available photographs do not establish that the lawns needed mowing at the end of the tenancy. Curtains

The landlord claimed $669.00 for replacement curtains. The invoice relied on shows that the landlord obtained a discount on the purchase, so that the replacement cost was $468.30.

The landlord said the curtains were new at the start of the tenancy. She said her curtains should have been returned at the end of the tenancy.

The tenants said the curtains were mouldy and did not smell very good. They disposed of the landlord’s curtains and bought new ones. The tenants said their photographs taken on 6 November 2022 supported their view that the curtains were dirty.

Tenants have an obligation, at the end of a tenancy, to leave in or at the premises all chattels provided by the landlord for their use (section 40(1)(e)). At the same time, landlords have an obligation to provide premises in a reasonable state of cleanliness (section 45(1)(a)).

If the curtains were mouldy at the start of the tenancy, then the landlord would have been responsible for cleaning or replacing them. Instead, the tenants purchased their own replacement curtains. They ought to have left the landlord’s curtains at the property. However, given the tenants’ evidence as to the condition of the curtains, I am not satisfied that the landlord has suffered any loss from this failure. Copying

The landlord claimed $4.70 for black and white copying. The landlord provided black and white photographs with her application.

The Tribunal has no power to award such costs in the circumstances of this case (section 102(1) of the Act). Exemplary damages

The landlord claimed exemplary damages on the basis it was a term of the tenancy that there would be a maximum of 2 people living there. Exemplary damages can potentially be awarded for breach of a clause specifying the maximum number of residents.

While the tenants had friends over to stay from time to time, I am not satisfied that they breached such a term (there is no express written clause to this effect in either version of the tenancy agreement). The tenants said they were the only people living in the property.

The landlord claimed exemplary damages on the grounds that the tenants kept a pet dog in breach of the tenancy agreement. The tenancy agreement does not appear to include a no pets clause. The tenants said they looked after a friend or relation’s dog for 3 weeks.

Even assuming the tenants were in breach of a no pets clause, there is no jurisdictional basis on which exemplary damages could be awarded. No compensation was claimed for any damage caused by the dog, and there was no claim for cleaning costs.

The landlord claimed exemplary damages for the tenants’ failure to look after her garden. No photographs were provided to support this claim. Further, there is no jurisdictional basis to award exemplary damages for a breach of this kind. Filing fee and name suppression

Both parties have had some success before the Tribunal. I exercise my discretion to award the tenants the filing fee. They succeeded in establishing that their tenancy was ended unlawfully, and the landlord brought several claims against them for exemplary damages which lacked merit.

I also find that the tenants have been “wholly or substantially” successful in the proceedings and grant name suppression as requested.

The landlord did not apply for suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4537989 — net $1,910.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$310.00		Rubbish removal
Compensation: Garage		$350.00	Garage
Compensation: Window		$350.00	Window
Compensation: General damages		$500.00	General damages
Exemplary damages: Harassment		$1,000.00	Harassment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$310.00	$2,220.44
Net award		$1,910.44
Total payable by Landlord to Tenant		$1,910.44