What was Tenancy Tribunal case 4550716 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 4550716?

Property Damage: $500.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $650.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $5,784.27 awarded to landlord

What type of tenancy dispute was case 4550716?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4550716?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9133215-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4550716 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 4550716?

Property Damage: $500.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $650.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $5,784.27 awarded to landlord

What type of tenancy dispute was case 4550716?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4550716?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9133215-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 52 Northcote Road, Hillcrest, Auckland 0627, Tenancy Tribunal Case 4550716 — Rent arrears

Claims and awards in Tenancy Tribunal application 4550716 — net $4,034.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 30 June 2023	$5,784.27		Rent arrears to 30 June 2023
Exemplary damages: S60AA		$650.00	S60AA
Exemplary damages: Failure to lodge bond		$100.00	Failure to lodge bond
Exemplary damages: Breach of Quiet Enjoyment		$500.00	Breach of Quiet Enjoyment
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Total award	$5,784.27	$1,750.00
Net award	$4,034.27
Total payable by Tenant to Landlord	$4,034.27

Claims and awards in Tenancy Tribunal application 4550716 — net $4,034.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 30 June 2023	$5,784.27		Rent arrears to 30 June 2023
Exemplary damages: S60AA		$650.00	S60AA
Exemplary damages: Failure to lodge bond		$100.00	Failure to lodge bond
Exemplary damages: Breach of Quiet Enjoyment		$500.00	Breach of Quiet Enjoyment
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Total award	$5,784.27	$1,750.00
Net award	$4,034.27
Total payable by Tenant to Landlord	$4,034.27

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ name and identifying details.
owes (“the debt”).
must pay rent on Friday the 7 July and Friday 14 July and the debt of $4,034.57 by 5pm on Friday 14 July 2023.
If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at will terminate and the landlord will have immediate possession of the premises. a. The balance of the debt will be payable immediately.
must pay immediately.

Reasons

Both parties attended the hearing held on the 23 June 2023.
On the 6 April 2023 the Tribunal issued a decision TT 4503941 which determined that [The tenant/s] had a residential tenancy and the Residential Tenancies Act 1986 applied to that tenancy. The Tribunal also ruled that the rent increase and termination notices given verbally to [The tenant/s] by the landlord were not valid and therefore of no effect.
On the same day (6 April 2023) about one and half hours later the landlord gave [The tenant/s] a notice to terminate his tenancy on the 4 June 2023. The claims.
On the 17 April 2023 [The tenant/s] filed a further application with the Tribunal, he claims: a) That the notice given on the 6 April to terminate the tenancy was retaliatory and unlawful. b) That the landlord has failed to submit his bond to the bond centre and has failed to provide him with a written tenancy agreement which complies with the requirements of s13 RTA. c) That the landlord has breached his quiet enjoyment of the premises in a manner that is harassment. d) That the landlord has unlawfully entered his premises.
The landlord filed its application on the 8 May 2023. It seeks: a) A declaration that the termination notice is valid and enforceable. b) Rent arrears. c) Termination for rent arrears (being 21 days at the date of application) Background
[The tenant/s] cabin is part of a wider camping ground and motel complex owned by the landlord. The landlord also owns the land next to the camping ground which has several houses where the owners of the houses have a licence to occupy the land.
[The tenant/s] moved into a cabin in August 2021, around the time that Auckland entered what would become its longest lockdown. It is important to note this as the covid pandemic changed the business model of the campground significantly which before the pandemic had been mainly short holiday accommodation stays in the cabins and motel units. As a result of the pandemic the landlord says it changed its business model and offered long term accommodation to the public.
[The tenant/s] changed cabins in or around February 2022, he occupies the same cabin today and has lived in his cabin for 18 months. He told me that he enjoys living in his cabin, he likes the park surrounds and until the beginning of this year he enjoyed a good relationship with both the employees of the complex and the other residents. It is his home.
[The landlord’s representative] has been the manager of the park for many years. She also told me that she enjoyed a good relationship with [The tenant/s] until earlier this year.
The dispute between the parties arose in early February 2023 when the landlord sought to increase the rent. [The tenant/s] did not consider that the rent rise was in line with market rent. [The landlord’s representative] said that all the park’s costs had increased and that the rent increase was in line with that. The landlord then sought to remove [The tenant/s] from his cabin by trespassing him.
The tenant filed a claim in the Tribunal to ascertain the nature of his occupation. The Tribunal, as stated above determined that it was a residential tenancy.

Is the notice to terminate given on the 6 April, lawful and is it valid?

In order to terminate a tenancy, the landlord must have both grounds to do so, and have followed the correct procedure. (See s51 RTA)
Having heard all of the evidence I am satisfied that the notice to terminate is invalid because it failed to disclose the appropriate grounds and has does not comply with the correct procedure. Procedural defects
The notice sets out the date of termination as the 4 June 2023, this is only 59 days after notice was given (6 April 2023) it does not comply with the Act because a 90-day notice must be given when a landlord intends to renovate the property. Does not disclose appropriate reason.
Section 51 sets out the reasons for giving 90 notices. In the notice given to [The tenant/s] it only set out that the landlord wished to renovate the cabin and had contractors ready to do so. I am not satisfied on the balance of probabilities that the landlord intends to renovate the property, or take steps to do so within 90 days because the landlord confirmed at the hearing that it renovates the cabins in tranches and that none of [The tenant/s] neighbouring cabins had been given notice, and no evidence was provided in the form of plans or designs which set out what the renovations were, There was no evidence that builders or contractors were ready to start work. Given that there was nothing more than the landlord’s assertions that renovations would occur, the Tribunal cannot assess the nature and extent of the renovations.
Having heard all of the evidence I am satisfied that the landlord’s primary reason for giving notice appears to be because the landlord can rent the property for more money by offering it for short term accommodation or seek more rent when offered long term. I say this because the landlord has told the tenant this multiple times, the landlord disclosed this in her application (she says they have other guests who have booked this unit) and the landlord confirmed that the landlord wanted the premises back to rent out for short term stays in her evidence.
The landlord’s notice of 6 April 2023 is therefore invalid and of no effect.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord gave [The tenant/s] an invalid termination notice stating that they planned to renovate, when in fact, I have found that there is no evidence apart from the landlord’s own submissions that supports that proposition. I find they have committed an unlawful act.
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 section 109(3) Residential Tenancies Act 1986.
I consider that the landlord has given the notice intentionally because the landlord meant to terminate the tenancy. At the hearing [The landlord/s representative] told me that they did so because they could rent the property for much higher commercial rates.
At the hearing [The landlord/s representative] submitted that it was not intentional to commit an unlawful act, because she did not know how what grounds were needed to terminate a tenancy.
In the case of TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge said, “Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law." Para 37.
The landlord gave the tenant notice less than two hours after the Tribunal’s determination that this was a tenancy. If the landlord was unfamiliar with the responsibilities of landlords, then it should have taken some time, to pause and seek advice on how and when termination notices may be given. The landlord runs a commercial business, and it would be familiar with compliance needed for other aspects of their business, such as Employment law or Council requirements. Once the landlord was advised by the Tribunal (6 April 2023) it had a residential tenancy, then it should have taken steps to familiarise themselves with the appropriate requirements of the legislation and could have used the templates and resources available on the Tenancy Service website. The short time between the order and the notice being given, showed a rushed response. I consider the landlord’s lack of understanding to be wilful ignorance of the law.
It is the clear intention of parliament that tenants should not be told to leave their homes when there is no lawful right to terminate. It is in the public interest that when a landlord attempts to terminate without a valid reason then an award for exemplary damages should be made.
The tenant told me that he was not too concerned about the notice, as he could see that it was non-compliant, but he saw this more of a pattern of harassment and wearing him down.
Taking the public interest, the intention of the landlord, the effect on the tenant into account I consider that an award of $650 exemplary damages should be made. This is a modest amount.

Was the notice retaliatory?

A notice is retaliatory if the landlord was motivated to give it because of the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement. A notice can only be declared retaliatory if it is valid. As the notice was not valid then I do not need to determine whether it is retaliatory or not.
However, I do record that having heard the evidence of the parties that it appears that the landlord sole reason for trying to terminate the tenancy was to obtain a higher rent for commercial gain, not by the exercise of the tenant of a tenancy right. In other words, the landlord did not give the termination notice because they were annoyed at the tenant or the Tribunal, it was given so that the landlord could move [The tenant/s] along and rent out the unit for higher amounts. It was given so quickly after the determination to ensure that the termination would occur as soon as possible.

Has the landlord failed to lodge the bond?

The tenant claims that the landlord has failed to lodge the bond within 23 working days with the bond centre. S19 RTA. The landlord seeks exemplary damages for this breach.
The landlord accepts that it is holding a $200.00 bond for the tenant. The landlord says it did not lodge the bond because before the 6 April 2023 as it did not know it had a residential tenancy, and after that date it thought the tenant would be leaving in accordance with the termination notice on the 4 June.
I accept that the landlord did not act intentionally in retaining the bond until the 6 April 2023 as the landlord genuinely believed it did not have a residential tenancy with [The tenant/s] up to that date. However, from the 6 April it was compelled to familiarise itself with the obligations of a landlord and the obligation to send the bond to the bond centre was one of those obligations. I therefore am satisfied that the landlord has acted intentionally in committing an unlawful act, as the landlord has intentionally and wilfully retained the bond.
I award the tenant $100 for this breach in exemplary damages. This amount reflects the value of the bond, the length of the breach the negligible effect on the tenant. The landlord should ensure that they lodge this bond immediately to prevent a further ongoing breach.
I note that the tenant has applied for breaches of the landlord’s failure to provide a written tenancy agreement. I accept that the landlord’s submission that until the Tribunal determined that it had a residential tenancy that was under the belief that it did not have a tenancy and that is why it was not documented as one. Now that it has been determined that this is a residential tenancy it should comply with the RTA. The landlord is strongly urged to take legal advice on how to comply with the RTA. Has the landlord has breached his quiet enjoyment of the premises in a manner that is harassment?
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 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". 1
In order to establish a breach of quiet enjoyment it must be more than a disagreement or a clash of personalities. In the case of Smith & Olmstead v Floris [1994] NZTT Auckland 1404/93 it was said: Quiet enjoyment effectively means the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that however, one must bear in mind that the landlord/tenant relationship is between individuals and that will inevitably involve some interaction between them on 1 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type.
[The tenant/s] says that since he made his claim with the Tribunal early in the year that he has been subjected to harassment by the landlord. He says that the landlord has called the Police and issued him with a Trespass order and that despite [The tenant/s] going through the Tribunal process the landlord has continually tried to get him to leave his premises. He says that [The landlord/s representative] has asked him to leave, the owner of the landlord company has asked him to leave, that he has been told in the public area that he has not paid his rent, even when he made an offer to pay rent that was refused by the landlord. [The tenant/s] also cites one occasions where he says he was removed from the landlord’s offices, by [The landlord/s representative] ‘stomach bumping’ him outside and touching his shoulder.
[The landlord/s representative] submitted that the landlord held an honest belief until receiving the determination on the 6 April that [The tenant/s] did not have a residential tenancy, and that the landlord was acting in accordance with that belief. [The landlord/s representative] submitted that despite Police being called to provide a trespass order the landlord had not in fact, sought to evict [The tenant/s], she said that she and her employees tried to remain polite to [The tenant/s] or ignore him until the Tribunal hearing, but that [The tenant/s] would raise the issue with her and employees, and would become heated. [The landlord/s representative] says that [The tenant/s] used a racial slur against her and her employee on one occasion, which is absolutely denied by [The tenant/s].
Whilst some of the interaction between the parties could be best categorised as a simple clash of personalities, I am satisfied that the landlord’s conduct in issuing the trespass notice, seeking to evict for no payment of rent, and yet refusing payment of rent when offered (which the landlord accepted in TT had occurred on at least one occasion) calling the Police to enforce the trespass orders were a pattern of behaviour aimed at troubling and distressing [The tenant/s] and therefore a breach of his quiet enjoyment. Throughout that time, [The tenant/s] had a ‘live’ application with the Tribunal for determination as to whether he had a tenancy or not, and the landlord should have allowed that process to be followed.
I have no doubt that [The tenant/s] found these interactions, frustrating, distressing and worrisome. The video played to the Tribunal of [The tenant/s] interaction with the landlord earlier in the year it illustrates the landlord’s blatant disregard for both [The tenant/s], and the Tribunal process.
I consider that it is the public interest that a moderate award of exemplary damages is made. I award the tenant $500 in exemplary damages for this unlawful act.
The allegations that [The tenant/s] made that [The landlord/s representative] stomach bumped him out of the office have not been proven. Likewise, the name calling that each party alleges, and the racial slurs have not been proven. That the landlord has unlawfully entered his premises.
[The tenant/s] claims that the landlord has entered his premises on at least two occasions without his permission or without giving notice.
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. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
[The landlord/s representative] accepts that she used her master key to unlock [The tenant/s] cabin to remove a notice that [The tenant/s] had placed in his window. She accepts that she did not have permission to enter into the cabin. She says she did not enter the cabin as such but reached through and removed the sign from the window. The sign had been erected by [The tenant/s] to inform Police that he had a live application with the Tribunal, so they would not evict him. [The landlord/s representative] says that she wanted to remove the sign as it was in full public view and would be able to be seen by paying guests.
[The tenant/s] also says that on the 21 and 22 April when he went to get into his bed he discovered that his bed sheets were wet. [The landlord/s representative] says that this must have been from a leak in the hot water cylinder in the ceiling above (as there was a leak in the adjoining cabin as well). [The landlord/s representative] says that this leak was fixed on the 22 April and provided an invoice for the Tribunal that showed a payment to a plumber on that date.
[The tenant/s] says that it could not have been from a leak for the following reasons: a) The top cover of the bed was not wet. The bed cover was pulled over the area that was soaked at the time, and there is no way if the leak came above, it that the bed sheets and mattress would become wet, but not the top cover b) [The tenant/s] says he makes his bed every day, so he is sure that the top cover was over the bedsheets at the time. c) [The tenant/s] says he left his cabin early in the evening of the 21 April and did not return until mid-evening, he says he noticed nothing out of the ordinary and would have noticed leaking on the top sheet in his studio unit if the top cover was wet. He says that he then worked during the night, as is his routine and went to go to bed early morning when he noticed the saturated bed sheets. He took photographs of the sheets as soon as he found them and the top cover. The top cover is not wet, and the bed sheets are saturated. d) [The tenant/s] is a retired engineer, he says that when he saw the water, he looked for a logical explanation such as leak but he could not find any evidence of leaks in the ceiling, on the walls or any other explanation for the water in his bed. e) [The tenant/s] therefore believed that someone entered his cabin whilst he was away in the early evening and wet the sheets. He says this must have been the landlord because the landlord was the only other person who has a master key.
Having considered all of the evidence provided I am not satisfied that the landlord entered the property on the 21 April and wet the landlord’s bed. Whilst I acknowledge that the circumstances and way that the bed was wet, are extremely suspicious, there is no evidence of the landlord entering the apartment, and in taking into account the landlord’s explanation that there was a leak in the hot water cylinder and an invoice which shows investigation by a plumber on the 22 April, the tenant has not been able to satisfied that the landlord unlawfully entered the premises.
[The tenant/s] also claimed that the landlord accepted coming into the premises on 4 other occasions in the last hearing to tur off lights etc. I have listed to the recording of the last hearing and read the transcript. [The landlord/s representative] does not say that she entered the property on other occasions to turn of lights etc.
I am satisfied that the landlord has entered [The tenant/s] premises without consent when she used the master key to remove [The tenant/s] sign. Therefore, I find they have committed an unlawful act.
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 section 109(3) Residential Tenancies Act 1986.
[The tenant/s] had good reason to put up a sign in his window, as it was clear that the landlord had asked the Police to evict [The tenant/s], and that [The tenant/s] was concerned about coming home to find that he had been locked out of his cabin.
[The landlord/s representative] acted intentionally, she gave no warning to [The tenant/s], she removed [The tenant/s] belongings.
[The tenant/s] found the landlord’s intrusion to be stressful and unsettling.
It is in the public interest that an award of exemplary damages be made for this breach. I therefore award [The tenant/s] $500.00 in exemplary damages for this breach. The landlord’s claim for rent arrears and termination.
The landlord seeks termination of the tenancy for non-payment of rent as the rent is more than 21 days in arrears. [The tenant/s] accepts that he has withheld rent because at first the landlord would not take his rent, and secondly because he had applied for compensation.
[The tenant/s] told me that he had put money aside to pay the rent on determination by the Tribunal.
[The landlord/s representative] has provided me with a balance of rent owed of $5,474.27 as at last Friday the 23 September. There has been another week since the hearing, and I assume in another week’s rent of $310.00 making a total to rent owed to today’s date of $5784.27. If I deduct the exemplary damages awards, I have made then [The tenant/s] owes a total of $4,034.27 to the landlord. [The tenant/s] tells me that he can make payment of this amount within 10 working days by the Friday 14 July 2023.
[The tenant/s] must also pay weekly rent of $310.00 on the 7 July and 14 July 2023.

Should a conditional termination order be made?

Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act 1986.
I am satisfied the tenant will pay the debt within the period specified in the order and is unlikely to commit any further relevant breach. I have granted a conditional termination order.
The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986. Filing fee and name suppression. 67.

Tenancy Tribunal case 4550716 — Rent arrears at Unit/Flat 4, 52 Northcote Road, Hillcrest, Auckland 0627,

At a glance

Tenancy Tribunal case 4550716 — Rent arrears at Unit/Flat 4, 52 Northcote Road, Hillcrest, Auckland 0627,

At a glance

Award balance

Claims & awards

Order

Reasons

Is the notice to terminate given on the 6 April, lawful and is it valid?

Was the notice retaliatory?

Has the landlord failed to lodge the bond?

Should a conditional termination order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the notice to terminate given on the 6 April, lawful and is it valid?

Was the notice retaliatory?

Has the landlord failed to lodge the bond?

Should a conditional termination order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions