What was the outcome of Tenancy Tribunal case 4551796?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4551796?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4551796?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment, Compensation.

Where can I read the official tribunal order for case 4551796?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9541906-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4551796?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4551796?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4551796?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment, Compensation.

Where can I read the official tribunal order for case 4551796?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9541906-Tribunal_Order.pdf.

62A McDonald Street, Napier South, Napier 4110 Tenancy Tribunal Case 4551796 — Rent arrears

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Gary Hatton must pay Jessica Rochelle Macmillan $2,200.44 immediately.
Whilst the tenant has filed an application against the landlord for various breaches of the Residential Tenancies Act 1986 (RTA), it was evident that a positive relationship existed between the parties for much of the tenancy.
The communications between the landlord and tenant became strained as a result of (a) the landlord listing the studio behind the main house where the tenant lived with Airbnb; and (b) the landlord’s partner becoming more involved in the tenancy. When the friendly causal relationship ceased to exist, the tenant began to assert her rights as a tenant and the landlord continued to disregard the same and ultimately, the tenancy ended on bad terms.
During the hearing both parties maturely stated that there were no hard feelings as between them and the landlord acknowledged that he had learned a great deal resulting in his appointment of a property manager to manage the tenancy of his property going forward.
The tenant has applied for compensation and exemplary damages for the following: a. Failure to provide a written tenancy agreement; b. Interference with the tenant’s quiet enjoyment of the premises; c. Unlawful entry of the premises; d. Unreasonable apportionment of electricity and internet charges; e. Unilateral variation of the tenancy agreement; and f. Termination of the tenancy without grounds.
The tenant withdrew her claim relating to the bond as it transpires that it was filed within 23 working days of the tenant completing her payments for the bond to the landlord. Background
The background to the tenancy was for the most part undisputed.
The satellite image overleaf provides a useful bird’s eye view of the property in question today. The property includes a garden shed, main house, garage and studio as per the labels shown on the image.
The landlord originally lived in the main house and let the studio out through Airbnb. The tenant contacted the landlord on Airbnb to ask if she could live in the studio permanently though a private arrangement (not through Airbnb) and the tenant took possession of the studio in May 2022.
In August 2022, the landlord moved out of the main house and the tenant took over the tenancy of the main house and studio. The tenant sublet the studio to her friend.
In October 2022, the tenant’s friend moved out of the studio due to a failure to pay rent. The landlord took back possession of the studio and began to let it out again through Airbnb.
The tenant claims she would have preferred to have sublet the Airbnb herself but felt she had no choice to hand it back to the landlord. The landlord referred to their original agreement which was that he would take back possession of the studio if the tenant could not sublet it. This was the only contentious matter in terms of the background.

Did the landlord fail to provide a written tenancy agreement to the tenant?

A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 RTA.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A RTA. Main House Studio Garage Shed Driveway
The tenant claims the landlord did not provide a copy of the tenancy agreement to the tenant. The tenant acknowledged that a basic agreement was entered into at the start of the tenancy when she moved into the main house and was subletting the studio but that no further agreement was provided when possession of the studio was returned to the landlord.
The tenant was specifically concerned that there was no written record as to the amount of rent due after the landlord and tenant had an altercation over the Airbnb and unilateral variations to the tenancy on 9 November 2023.
The landlord’s position is that a written signed tenancy agreement was provided to the tenant at the start of the tenancy.
The whole point of this requirement to provide a tenancy agreement is so there is disclosure to tenants, and they can make an informed decision before signing a legally binding contract.
The tenant was provided a copy of the tenancy agreement entered into at the start of the tenancy along with a cover letter from the landlord. Accordingly, I find it more likely than not that she was provided with a copy of the tenancy agreement. Thus, I dismiss the tenant’s claim that she was not provided with a copy of the Tenancy Agreement.
The tenants concern regarding the increase in rent and unilateral variations to the tenancy are covered later in this decision.

Did the landlord enter the premises without notice?

The law

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, repairs, and maintenance. See section 48(1) and (2) RTA.
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 RTA. The tenant’s claim
The tenant claims the landlord entered the premises without consent or notice regularly. The tenant’s main complaint was linked to the events that took place one week after the Airbnb had been listed by the landlord, on 9 November 2022, when the landlord and his partner attended the premises at 8:30am without notice to advise the tenant of several changes to the tenancy including: a. the removal of the tenant’s swimming pool which had previously been approved by the landlord; b. relocation of the tenant’s barbeque from the area that Airbnb guests walk through; c. restrictions around the locking of the front gate; d. no smoking on the property at all; e. only the tenant’s car was to use the driveway; f. the tenant was allowed a maximum of four guests at any time; and g. one weeks’ notice of a rent increase.
The tenant claims that she was traumatised and became very upset and that during the discussion between the tenant and landlord, the landlord withdrew the rent increase.
The tenant claims that there were many other occasions where the landlord would turn up to clean the Airbnb or get items from the shed. The landlord’s response
The landlord claims that his relationship with the tenant was friendly to the extent that the tenant would look after his children and feed his dog when he would go away. The landlord submits that he was lenient regarding the tenant’s rent arrears.
The landlord claims that the tenant agreed that he would Airbnb the studio and that it all went “pear shaped” when he received a negative review from an Airbnb guest who had overheard the tenant complaining about her lack of privacy. The landlord claimed that the negative review from the Airbnb guest affected the landlord’s rating with Airbnb and he was not happy when he approached the tenant on 9 November 2022. He claims he was under financial pressure and that the altercation with the tenant caused a problem with his partner who felt he was siding with the tenant and subsequently his partner kicked him out of their home.
The landlord stated that he did his absolute best to let the tenant know via text message when we would be attending the premises to attend to the Airbnb or collect his fishing gear from his shed. Findings
Section 48 RTA states that landlords have limited rights of entry onto “the premises”. If a landlord enters the premises other than in accordance the terms set out in section 48 (for instance, for the purpose of inspection or repair, having given notice to the tenant), then the landlord has committed an unlawful act. However, the definition of “premises” in section 48 excludes “land and facilities”. Therefore, the landlord is not required to give notice if they only go onto the land around the house and not into house itself.
Accordingly, I do not consider that the landlord’s attendance to clean the Airbnb, to collect items from the shed or to go to the tenant’s door on 9 November 2022, amount to unlawful entry.
I consider that the landlord was too casual when it came to arranging to come to the property, but the tenant did not object at the time and the landlord was never acting maliciously. There is no suggestion that the landlord entered the house without the tenant’s consent.
However, the landlord’s attendances to the property are an example of a pattern of behaviour by the landlord that caused an interference with the tenant’s reasonable peace, comfort, and privacy. This issue is discussed in more detail below. Did the landlord breach the tenant’s right to quiet enjoyment of the premises? The law
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 tenant’s claim
The tenant claims that she felt uncomfortable living in the main house, not knowing who or how long someone would be letting the Airbnb.
The tenant referred to the landlord’s unannounced attendance at her front door on 9 November 2022 and other occasions when the landlord or his partner would attend the premises to turn over the Airbnb or collect items from the shed.
The tenant referred to an occasion when the landlord telephoned her late one evening and asked her to go over to the studio to assist the Airbnb guests with the Wi-Fi which had stopped working. The tenant referred to another occasion when the landlord’s partner sent a text message stating that the tenant was to make room in the driveway for the landlord and his partner to park so that they could attend a rugby match nearby.
The tenant submitted that the variations to the tenancy agreement imposed by the landlord on 9 November 2022 were unfair but that she felt she had no choice but to accept or the tenancy would be terminated by the landlord.
The tenant submitted that when she asked for confirmation in writing that the rent was not going to increase as indicated by the landlord’s letter dated 9 November 2022, the landlord’s partner became unfriendly and suggested that the tenant should simply give her notice to terminate the tenancy. The landlord’s response
The landlord reiterated the point that the relationship had been friendly until he had received the Airbnb guest review and the meeting on 9 November 2022.
The landlord confirmed that he had screened all Airbnb guests and would not accept any guests who might be a problem or threat to the tenant. The landlord submitted that he would not have requested the tenant to deal with the Airbnb Wi-Fi if he had known that she had taken issue with it.
The landlord initially stated that he considered his requests in his letter of 9 November 2022 were reasonable. When questioned further during the hearing, the landlord acknowledged that his behaviour on 9 November 2022 and the content of his letter regarding the proposed changes to the tenancy was not acceptable behaviour for a landlord. Findings
Having reviewed the evidence in detail, whilst I consider that the landlord’s attendances to the property were for the main part legitimate, I consider that the pattern of behaviour by the landlord essentially amounted to an invasion of the tenant’s privacy. It is clear that the parties had a friendly and casual relationship but that it became different when the studio was listed on Airbnb by the landlord, and landlord’s partner became more involved.
I acknowledge that context is important, and it is necessary to give consideration to the way that the landlord and tenant choose to interact. If a landlord and tenant have a friendly, casual relationship, then it may not be unusual or inappropriate for a landlord to come and go freely from the property. However, it is clear that the casual friendly relationship no longer existed after the Airbnb review was received and that the landlord should have adjusted his behaviour accordingly.
I consider that the landlord’s behaviour amounted to a breach of his duty to not cause or permit any interference with the tenant’s reasonable peace, comfort, and privacy. A breach of this duty in circumstances that amount to harassment of the tenant is an unlawful act, and exemplary damages can apply (section 38(3) RTA). Harassment is a pattern of behaviour that is intended to vex, distress, and worry.
I accept that the landlord’s behaviour did cause distress and worry (and annoyance) for the tenant. However, the landlord’s actions can be explained by a disregard for the tenant’s right to privacy, or by a lack of understanding of proper landlord / tenant boundaries, rather than an actual intent to cause worry and distress.
Exemplary damages are punitive, and it would not be appropriate to award exemplary damages for harassment if it is not clear that there was an intent to harass. Accordingly, I will not award exemplary damages in this instance.
I will make an award of compensatory damages. As noted above, the landlord’s behaviour caused distress and loss of enjoyment for the tenant. This type of “loss” is difficult to quantify in monetary terms. In considering an appropriate award I have had regard to: a. The period over which the behaviour occurred. b. The extent of loss of privacy and distressed that it caused for the tenant; c. The fact that the tenant’s actions were in some respects legitimate; and d. The proven incident on 9 November 2022 (discussed below).
Having regard to these factors I will award compensation of $2,000.00.

Did the landlord overcharge the tenant for electricity and Wi-Fi?

When the landlord took back possession of the studio and listed it with Airbnb it was proposed that the tenant’s rent would reduce to $475 per week, but that it would reduce to $450.00 as the tenant was paying the electricity and Wi-Fi charges for the main house and studio. The tenant’s claim
The tenant claims that she had no choice but to agree otherwise she would have to move out. The tenant provided a copy of her record of the Airbnb guest usage and claims that it was rented out most nights. The tenant claims that the $25.00 reduction per week was not a reasonable reflection of Airbnb guest usage and that it was impossible to tell as there was no separate power meter. The landlord’s response
The landlord claims that his estimate of electricity and Wi-Fi charges was based on his experience of said costs when he was living in the main house and renting the studio through Airbnb 3 – 4 days per week. He claims that the Airbnb guests were rarely home and rarely used the cooking facilities.
The landlord claims that the tenant never raised any concerns with the electricity or Wi-Fi charges. He submits that he was willing to put in his own Wi- Fi in the studio but that the tenant was more than happy to allow the Airbnb guests to piggyback on hers. He claims that the tenant’s usage was high due to her own consumption. The law
The RTA confirms that tenants are liable for outgoings, which are exclusively attributable to their occupation of the premises. Most commonly electricity is provided by a separate meter, and there are no difficulties in those cases in being satisfied that the electricity usage, was used by the tenants. However occasionally electricity is provided by way of a supply also used in other dwellings, which is the case here. That makes it very difficult to establish what the electricity usage is, that would be exclusively attributable to the tenants. Findings
In this case, I tend to agree with the tenant, that the amount is not reasonable given the overall Airbnb guest attendances. From the records provided by the tenant, which I am inclined to accept, the Airbnb guest attendance is high than it was when the landlord was living in the premises and renting the studio. It must be acknowledged that the tenant did use more power than the landlord, and it would be fair that they pay for that. The best I can do in order to do justice between the parties in the circumstances, is to fix an amount for power usage that I consider would be fair in the circumstances, and I fix that at $40.00 per week. On that basis, the tenant is to be compensated $15.00 per week for 12 weeks.

Did the landlord unilaterally change the tenancy agreement?

On 9 November 2022, the landlord attended the tenant’s home unannounced to hand deliver a letter which unilaterally varied the tenancy agreement. The detail of the variation is set out in paragraph 23 above. The tenant’s claim
The tenant claims that there was no formal variation to the tenancy agreement despite her requests and that she felt pressured into accepting the changes otherwise she would have to move out. The landlord’s response
The landlord’s evidence was that he was unhappy with the Airbnb guest review, particularly because he considered that he had been so good to the tenant. He submitted that the tenant agreed to the changes. During the hearing, the landlord acknowledged that the approach taken was unreasonable. The law
There is nothing in the RTA that explicitly allows a landlord to unilaterally vary the premises or ban use of part of them. Section 13B of the RTA states that every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and tenant.
In addition, the landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
The parties to a contract may by agreement vary the terms of that contract. However, a unilateral change by one party, without any agreement, cannot be a variation; except where the contract provides for such a power in that party.
Since a variation involves an alteration as a matter of contract of the contractual relations between the parties, the agreement for variation must itself possess the characteristics of a valid contract. Thus, to effect a variation the parties must be ad idem (of the same mind) in the same sense as for the formation of a contract. Negotiations for variation which do not result in agreement have no effect. Findings
I find that the landlord’s letter is an invalid variation of the tenancy agreement. Furthermore, I consider that some of the changes proposed are overbearing and unenforceable terms, such as “no more than four guests”. It is not surprising that the tenant found the incident on 9 November 2022 stressful. I am satisfied that the incident was an interference with the tenant’s quiet enjoyment of the premises. The landlord sought to control how the tenant used the premises beyond what could be considered reasonable. Whatever the landlord’s motivation may have been, it was not acceptable for him to interfere with the tenant’s life in the way that he did. His action were intrusive. I have already awarded the tenant compensation for the breach of quiet enjoyment above. Did the landlord increase the tenant’s rent without adequate notice? The tenant’s claim
The tenant claims that the landlord increased her rent unlawfully by attending the premises on 9 November 2022 with a letter giving one weeks’ notice of a rent increase from $450 to $475 per week. The landlord’s response
The landlord acknowledged that it was not acceptable to give one weeks’ notice and stated that the request for a rent increase was withdrawn during the discussion between the parties on 9 November 2022. The law
Section 24 of the RTA allows the landlord to unilaterally increase the rent with 60 days’ notice.
Section 24(1)(d) of the RTA provides however that the rent must not be increased within 12 months of the date of the commencement of the tenancy. Findings
The landlord’s notice of rent increase given on 9 November 2022 was a clear breach of the RTA. The tenant was given one weeks’ notice instead of 60 and the tenant had only been living at the property for three months. Unfortunately, the notice of rent increase was one of the catalysts for the disharmony between the parties.
As the tenant never actually paid the higher rent proposed, no compensation is to be awarded. The tenant has already been compensated for the impact on her of the 9 November 2022 notice.

Was the termination notice issued by the landlord valid?

After the altercation between the tenant and landlord on 9 November 2022, the landlord’s partner kicked him out. The landlord telephoned the tenant and initially advised her of the fact that he had been kicked out and that he would need to move into the premises over the phone. The tenant’s claim
The tenant claims that the telephone call caused her a lot of stress. The tenant’s aunty became involved and advised the landlord that he had obligations under the RTA to give the tenant reasonable notice of the termination of her tenancy. The landlord’s response
The landlord submits that the telephone call was simply a ‘heads up’ to the tenancy. The landlord claims he would have moved into the studio but for it being booked out. He submits that after receiving contact from the tenant’s aunty he issued the correct notice.
On 16 November 2022, the landlord gave the tenant a 63 days’ notice of termination of the tenancy on the basis that he would need to move into the premises. The tenancy ended on 18 January 2023.
The landlord claims he spent weeks trying to make amends with his partner and during the notice period his relationship with his partner reconnected and he moved back in with her. The landlord’s father instead moved into the property. The law
Section 51 of the RTA sets out the manner in which a landlord may terminate a tenancy and it confirms that every notice must be, among other things, in writing.
Under section 60AA of the RTA, a landlord must not give a notice to terminate the tenancy, knowing they are not entitled to do so. Breaching this obligation 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 RTA Findings
I consider it more likely than not that the landlord intended to terminate the tenancy over the telephone and that the second written notice on 16 November 2022, was only provided as the tenant asserted her rights as a tenant.
Plainly, the notice given over the telephone does not comply with section 51 of the RTA because it was not in writing. It is a fundamental requirement that termination notices are in writing so that the tenant has an undisputed record of the termination date. Without that, there is the potential for disagreement over the true end of the tenancy.
Section 51 does state that no notice shall be held invalid for any failure to comply strictly with the requirements e.g., that it be in writing. The word “strictly” is important. It denotes that some variation will be permitted, but that the notice must comply in substance with the requirements. I consider that a notice of termination being in writing is critical to ensure clarity.
The notice by telephone is therefore invalid in form. I am satisfied that the invalid termination notice was very upsetting for the tenant. The tenant has already been compensated for the impact on her of the 9 November 2022 notice.
I am satisfied that the later termination notice dated 16 November 2022 was valid in form and provided for genuine reason in that the landlord was intending to move into the premises. Filing fee and suppression
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
Neither party sought a suppression order. T Lee-Lewis 20 October 2023

Tenancy Tribunal case 4551796 — Rent arrears at 62A McDonald Street, Napier South, Napier 4110

Tenancy Tribunal case 4551796 — Rent arrears at 62A McDonald Street, Napier South, Napier 4110

Order

Did the landlord fail to provide a written tenancy agreement to the tenant?

Did the landlord enter the premises without notice?

Did the landlord overcharge the tenant for electricity and Wi-Fi?

Did the landlord unilaterally change the tenancy agreement?

Was the termination notice issued by the landlord valid?

Order

Did the landlord fail to provide a written tenancy agreement to the tenant?

Did the landlord enter the premises without notice?

Did the landlord overcharge the tenant for electricity and Wi-Fi?

Did the landlord unilaterally change the tenancy agreement?

Was the termination notice issued by the landlord valid?