Published tribunal order
Tenancy Tribunal case 4551096 — Cleanliness at Unit/Flat 10, 15 Onukutara Pl, Flagstaff, Hamilton 3281
Decided 24 Jan 2024 · Published 24 Jan 2024 · Application 4551096
- Cleanliness
- Exemplary damages
- Harassment
Party names are redacted in the official published order.
Order
- The name of the landlord owners is suppressed from the published order.
- Donna Kennedy must pay Utrust Property Management Limited As Agent For [The landlord/s] $2,067.50 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,400.00 ([Bond number suppressed]) ) to Utrust Property Management Limited As Agent For [The landlord/s] immediately.
Reasons
- [The landlord’s representative] attended the hearing in-person on 17 August 2023 on behalf of [The applicant/s]. Donna Kennedy attended by telephone.
- I am satisfied that it is appropriate to treat Utrust Property Management Limited (“Utrust”) as the landlord. 1 This is because Utrust acted on behalf of the owners in all dealings with the tenant. I refer to Utrust as landlord in this decision.
- Both parties have made applications to the Tribunal.
- The landlord seeks payment of rent arrears and minor costs for spot-cleaning and weeding the garden.
- The tenant has applied for compensation for costs and anxiety for alleged unlawful entry into the premises and interference with the power supply by the landlord, breach of her quiet enjoyment on that occasion and from being sent multiple inspection notices and not being allowed to move out of the premises before it went on the market for sale. She also says the landlord took too long to respond to a fault with the power supply early in the tenancy. The landlord’s claims
- The parties agree that the tenancy ended on 24 May 2023 after the landlord gave notice to terminate the tenancy on the basis that the property was to be marketed for sale.
- The landlord provided rent records and the tenant agrees these are correct. I award the amount owing which is $5,820.00. Cleaning:
- A tenant is required to leave premises “reasonably clean and tidy” at the end of a tenancy; see section 40(1)(e)(iii) Residential Tenancies Act 1986 (RTA). This includes the gardens and lawns (if these are noted as a tenant responsibility in the tenancy agreement).
- After considering the photos from both parties, my decisions are:- a. The premises were left reasonably clean and tidy except 3 sets of curtains which needed washing, and a few cupboards in the kitchen that were not completely wiped out. The tenant had engaged professional cleaners. I award $60.00 towards the landlord’s costs; 1 Section 2(1) Residential Tenancies Act 1986 defines landlord as “... the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes ... (e) an agent of the landlord". b. Two small gardens were left with weeds to be removed. The garden contractor invoice is for $175.00 but the work was not done until over a month after the tenancy ended. I reduce the amount awarded by 50% as a reasonable assessment of the work which related to the tenancy. This is $87.50. The tenant’s claims Unlawful entry into the premises, breach of quiet enjoyment and/or interference with the power supply – the events of 16 April 2023
- Donna Kennedy claims that the landlord’s property manager entered the premises without consent or notice on Sunday 16 April 2023 and turned off the power to the premises and that these actions interfered with her quiet enjoyment and privacy in her use of the premises.
- The RTA includes the following:- a. A landlord’s rights of entry into tenancy premises: a landlord may not enter inside tenancy 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. 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 and Schedule 1A RTA; b. A landlord is entitled to enter tenancy premises for the purpose of confirming whether a tenant has abandoned the premises; see s48(2B) RTA. That section says: (2B) The landlord may enter the premises for the purpose of confirming whether the tenant has abandoned the premises at any time specified in a notice given to the tenant not less than 24 hours before the intended entry. c. A landlord must not interfere with the supply of water, gas, electricity, telephone or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 45(2) and (2A) and Schedule 1A RTA. d. A landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises and to do so in circumstances that amount to harassment is an unlawful act for which exemplary damages of up to $3,000.00 may be awarded. See s38 and Schedule 1A RTA.
- I heard oral evidence from the tenant and from the property manager concerned. Their accounts of the events of the evening of 16 April 2023 are largely the same. The evidence is that:- a. The property manager sent a text to the tenant at 1:12pm on 15 April 2023, which said: Hi Donna, I will drop by to your house and check whether you are still living there. Since you have stopped paying rent since 23 March. b. The property manager went to the address at about 6pm on Sunday 16 April 2023 and, after receiving no response after knocking loudly on the front and back doors, she entered the internal garage of the premises using her remote control. c. The property manager then turned off the power supply by switching off the mains switch on the switchboard located in the internal garage and went back outside to her car. d. The tenant said that she was upstairs putting her young children to bed when the power went off. After calling a family member for support and advice, she went downstairs into the garage to check the switchboard, saw that the garage door was up, and switched the power back on. e. The property manager saw the tenant and approached the garage on foot. The tenant attempted to close the automatic garage door but the landlord used her remote to open it again. The property manager then entered the garage and spoke to the tenant about the rent arrears.
- I made an oral decision in the hearing that the text sent to the tenant on 15 April 2203 is not sufficient to be proper notice of entry. The text does not specify a date or time and does not clearly say that the landlord intends to enter the premises.
- The internal garage is part of the inside of the premises. It is secured from the outside and part of what the tenant was renting.
- My decision is that the landlord (Utrust) unlawfully entered the internal garage, which is part of the tenancy premises, on two occasions between about 6pm and 7pm on the evening of 16 April 2023. There was no proper notice of entry, and the tenant did not consent. These are unlawful acts; s48(4)(a) RTA.
- The landlord has breached s45(2) RTA by interfering with the power supply. This is also an unlawful act; s45(2A) RTA.
- I agree that these actions constitute a breach of the landlord’s duty not to cause interference with the reasonable peace, comfort and privacy of the tenant; s38(2) RTA. It is a clear breach of privacy to have a landlord enter tenancy premises when they are not entitled to do so and to turn off the power. However, I do not find this one occasion to be “harassment” (s38(3) RTA).
- I have decided that it is sensible and appropriate to consider the tenant’s claims for unlawful entry, interference with the power supply, and breach of quiet enjoyment together because they relate to the same circumstances.
- The tenant has applied for compensation. She says that she and her two young children were so anxious after the unlawful entry incident that they paid for alternative accommodation elsewhere. An invoice was provided after the hearing (for a total of $2,072.00 in hotel costs for 7 nights from 17 to 23 April 2023). She referred to other costs in her application, but these were not substantiated with receipts.
- After careful consideration, I award the tenant $500.00 towards the alternative accommodation 2 and $1,000.00 in general compensation in recognition of the anxiety that I accept she experienced due to the landlord’s actions that night. She described her children as being frightened when the power went off suddenly and that she was very stressed by the property manager’s entry into her home and insistence that she explain the rent arrears situation there and then.
- The amount of compensation I have awarded is also partly in recognition that an award of exemplary damages is appropriate for these breaches.
- Considering the tenant’s application strictly, she did not choose the parts of the Tribunal application form that relate to “exemplary damages”. These are penalties set in the RTA (see above at paragraph 11).
- The fact that a party has not expressly applied for a particular remedy does not necessarily prevent the Tribunal from making an award where it is in the interests of justice to do so.
- The District Court took this view in Maria Cavanagh v Kainga Ora [2022] NZDC 7003 and ordered damages/compensation where these had not been specifically applied for but were the only remedy available for a proven breach. The Court pointed out that the Tenancy Tribunal has an extensive jurisdiction which it is expressly directed to exercise in accordance with fairness and efficiency. 3
- If the tenant had applied for exemplary damages, I would have awarded these. I have set out my reasons for this below.
- Exemplary damages may be awarded where a party has committed an unlawful act intentionally and the Tribunal 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. Section 109(3) RTA. 2 Any loss must be reasonable and arise as a natural result of the breach. It was not reasonable to spend more than $2,000.00 on 7 nights of hotel accommodation. 3 Section 85 RTA.
- The landlord’s actions to enter the premises and turn off the power were intentional.
- The intent of the property manager was to provoke a response from the tenant who had not been responding to communication about rent arrears. The property manager was understandably frustrated however there are many tools available in the RTA to address rent arrears. The proper course of action is to apply to the Tribunal for termination of the tenancy, and to give proper written notice of entry to the premises.
- The effect of the property manager’s actions was to invade the privacy of the tenant’s home and frighten the tenant and her children by turning off the power after dark and without warning. I take into account that the entry was into a garage (not the house) and that the power could easily be switched back on.
- The interests of a tenant are that their home will not be entered without them receiving notice of it or giving consent (except in an emergency) and services will not be interfered with.
- There is a public interest. The limits on a landlord’s right of entry are set to preserve the right of possession granted to a tenant. The RTA protects a tenant’s access to essential services. The fact that a tenant owes rent or is not communicating is not a justification for a landlord breaching the law.
- I have not awarded additional exemplary damages over and above the compensation however my reasoning above illustrates that these are justified and adds weight to my award of compensation. Breach of quiet enjoyment – other claims
- The tenant listed various other actions taken by the landlord that she says are inappropriate or unlawful and breached her quiet enjoyment. I list these and my findings below:- a. Entered the property in February 2023 without giving notice: The landlord proved it did give notice for this inspection and had rescheduled it at the tenant’s request. A photo taken of the garden was taken by the real estate agent preparing the house for sale and I note that entry to the outside of a tenanted property does not strictly require notice to a tenant (provided a tenant’s privacy is respected). This claim is dismissed. b. Sent multiple notices of inspection between 3 and 19 May 2023 which breached the legal timeframe allowed for inspections and caused her stress especially as the tenancy was to end on 24 May 2023: The landlord apologised and explained that a new staff member had sent the notices in error. This was communicated to the tenant at the time and the inspections did not take place, so I do not consider it to be a breach of quiet enjoyment. This claim is dismissed. c. The tenant says that, by law, she should have been given the opportunity to move out of the premises before it was marketed for sale and not have to experience the marketing process (photographs and open homes every weekend). I dismiss this claim. A landlord does not have to delay marketing until a tenant has moved out. Both parties do have legal rights when a property is to be marketed for sale. A landlord may give a 90-day notice to terminate a tenancy (which it did) and may arrange viewings of the house with the consent of the tenant. The tenant says that there were no problems with the real estate agent or process. The tenant was advised by the landlord (in an email sent with the 90-day notice) that she was able to give 28 days’ written notice if she wished to vacate before the termination date (and before the end of the fixed term). She did not do so. Breach of maintenance responsibilities
- Ms Kennedy says that she incurred costs after a fault with the electricity at the house. The evidence shows that the landlord responded, and an electrician completed the repair on the first working day after being notified of the issue. Ms Kennedy had emailed on a Saturday night and did not text or phone the landlord. If she had, a weekend response may well have been possible. There was no evidence to substantiate costs. I dismiss this claim. Suppression of names and filing fees
- Both parties have been partly successful so the filing fees will remain as they are.
- Both parties have been substantially successful in their claims. However, I consider that the landlord agent’s name should be published due to the unlawful entry breach and the tenant’s name published because of the rent arrears. I suppress the names of the owners.
- The bond is refunded to the landlord and the balance owing is payable by the tenant. The parties are free to agree on a payment plan which may reduce costs.