What was the outcome of Tenancy Tribunal case 4555629?

The tribunal order states: The Bond Centre is to pay the bond of $2,360.00 (3543105-004) to Alastair Guy

How much money was awarded in case 4555629?

Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4555629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4555629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9222795-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4555629?

The tribunal order states: The Bond Centre is to pay the bond of $2,360.00 (3543105-004) to Alastair Guy

How much money was awarded in case 4555629?

Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4555629?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4555629?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9222795-Tenancy_Tribunal_Order.pdf.

179 Raumati Road, Raumati Beach, Paraparaumu 5032 Tenancy Tribunal Case 4555629 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4555629 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breaches ss 38&48	$750.00	breaches ss 38&48
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Claims and awards in Tenancy Tribunal application 4555629 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breaches ss 38&48	$750.00	breaches ss 38&48
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Order

The Bond Centre is to pay the bond of $2,360.00 (3543105-004) to Alastair Guy Harris and Sheralee Raiti (Kingi) Harris immediately.
Jade Rental Properties Limited must pay Alastair Guy Harris and Sheralee Raiti (Kingi) Harris $770.44 immediately in accordance with the following table:
No application for suppression has been made in this case and no suppression orders apply around publication of this decision.

Reasons

This tenancy had gone well for the three years it was in existence, however interactions the tenants have had with the owners at the end have left them upset and insulted. Their concerns firstly relate to visits to the property the owners made over two days whilst they were moving out, and then discussions regarding damage following the end of the tenancy.
I look at those concerns in detail below but firstly note that the landlord is making no claim against the bond therefore it can be refunded to the tenants now by consent. Have the owners breached the tenants’ quiet enjoyment of the property and/or accessed the property unlawfully?
The Harris’ initially gave notice to leave the home on 17 March. This was later extended by consent to 19 March. They had arranged to be packing the preceding week and collect their moving truck on the 16 th to move their belongings over the 17 th and the weekend.
The owners attended the property on the 16 th (for the full day) and 17 th (from midday on) to undertake garden maintenance. The Harris’ say their presence on these days impeded their moving plans, made them feel very uncomfortable, made them feel belittled and disrespected, and upset their last days in the house. They do not feel they were given adequate notice of the visit and it exacerbated what was an already incredibly stressful time.
Ms Foote for Jade, the property management company, says she gave Ms Harris oral notice of the owners attending on the 16 th and 17 th back in February and reminded them on the 15 th of March. She says that when she reminded them, she also asked if a real estate agent could attend with them on the 17 th but that was refused by the Harris’ and so she duly cancelled that arrangement.
Ms Harris agrees Ms Foote told her the owners wanted to come and “catch up” with them at “some stage” prior to the end of the tenancy but is clear she was not told a date or specific purpose of their visit until the 15 th ; the day before. She says she even asked later for clarification of dates as it was going to be a busy time for them but was not told until the day before.
Mr and Ms Harris’ evidence is that when the owners were at the property, they: a. Parked in the driveway impeding their access for a period. b. Left piles of green waste around their boxes in the car port impeding their moving. c. Inferred that the Harris’ should have done more gardening and as such they (the owners) were doing them a favour in their work. They further inferred the Harris’ should be helping them with the work, at one stage telling them (the Harris’) they had to dispose of the green waste they (the owners) created. d. Made several passive aggressive remarks which caused tension between the parties. e. Came into the house four to five times but always knocked and asked first. The Harris’ say they felt obliged to let them in. f. Brought a plumber around with them without having provided any prior notice of their intention to do so. g. Told them how much it had cost them to travel up, inferring they were incurring costs because of the tenants’ actions. h. Stripped out the gardening work Ms Harris had done at great financial and time cost to herself.
After these interactions had marred their leaving of the property, they were further upset by claims made over the bond which they owners said related to their fridge leaking and/or their carelessness. They say they felt they were being called liars and that what they had actually said to the owners directly was being twisted by them in conversations with Jade.
Ms Foote is clear that the owners were aware what their obligation was in the garden and that the Harris’ had met their own obligations with respect to the gardens by that time as they had left them reasonably tidy. She therefore doubts that the owners gave the Harris’ the impression that they were essentially cleaning up after them as they were not. This is different however to the owners’ statement which says: “[we] were both disappointed with how much clean up work needed to be done”. The statement also says they did nothing to give the impression they expected the Harris’ to help them and were respectful of and courteous to the Harris’.
Ms Foote was unaware the plumber had attended the property but is sure the owner would not have brought him into the house without seeking permission first. She says the owners advised her they only went into the house upon invitation from Ms Harris. Her understanding is that they had attended the property for two days in June 2022 for the same reasons and there had been no issue. The Harris’ say the June visit did not occur.
The Harris’ seek a declaration that the owners’ actions were a breach of their quiet enjoyment, and exemplary damages. The law and discussion
A landlord may not enter a premises during a 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 (RTA) for specifics.
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.
Notably, the definition of premises in s48 does not include land or facilities. Therefore, entry onto the land, but not the interior of the premises, might not be a breach of s48 but may in some circumstances, be a breach of a tenant’s right to quiet enjoyment pursuant to s38 RTA. S38 states that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their 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. 1
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.
These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but doing so can quickly breach reasonable peace, comfort and privacy if not well managed. Also relevant, as determined by case law, is the level of prior knowledge the tenants had of the work that was going to take place. 2 1 See section 38(3) and Schedule 1A RTA. 2 Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013
In summary, whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the work being carried out, and the length and degree of intrusion.
As above, Ms Foote is correct in her submission that landlords are not legally required to give specific notice of their attendance to work in the section of a tenanted property. However, it is clearly best practice to give such notice in the interests of being respectful of another’s home and right to privacy. It may also turn into a breach of the tenant’s quiet enjoyment of the property if the visit is not handled appropriately.
When, as is the case here, I am presented with two different versions of an event, I must ascertain to the civil standard of proof, being the balance of probabilities, what is more likely than not to have occurred. I do that on an assessment of the evidence I am provided with.
Having weighed up the respective versions, I do not find it established that the Harris’ were provided with the exact dates the owners would be attending, nor the extent and reasoning of their visit. I prefer the Harris’ version as had they been advised the owners would be there for two days whilst they were moving this would no doubt have been significant enough for them to have remembered. They tell me they have a calendar on the fridge where they mark all important events, including visits from the landlord, and there was no mention there. Further, their response when advised the day before was consistent with not having been advised earlier. Further still, Ms Foote advised in oral evidence she had given the oral notice at a viewing in February and yet her email to the owners said she gave the oral notice on 10 March; there is therefore a lack of clarity as to when she recalls she gave that notice.
I then turn to whether their visit did amount to a breach of the Harris’ quiet enjoyment of the property. Firstly, I note that regardless of whether the tenancy was ending on the 17 th or 19 th , the owners had planned to attend the property prior to the end of the tenancy at a point the tenants would undoubtably be in the process of moving out. No evidence of these dates being a necessity was provided. This was clearly foreseeably going to be at a time of stress and activity for the tenants as they were packing up and moving to a home they were in the process of purchasing.
Secondly, the owners were at the property for a significant amount of time. Their work was foreseeable to, and did in actuality, affect the Harris’ move. In terms of their attitude to the Harris’ I find that it was of the nature to create the feelings described above by the Harris’. There were clearly misunderstandings and I accept the Harris’ submission that they felt they had to be cordial, invite them in on occasion and let them in at other times because they were the owners and still “held their bond”. It was also foreseeably upsetting for Ms Harris to see gardens she had created being ripped up in front of her.
On assessment of the evidence, I find that whilst the owners were invited into the home on occasion, they asked to enter at other times. Whilst they are entitled to make such a request, to do so on multiple occasions when the Harris’ were trying to move was unnecessary and invasive. They were having possession returned to them in a matter of days and there appears no reason their work could not have waited until then.
I also accept the Harris’ evidence that they were not made aware of the plumber’s attendance until the day he attended with the owners. A landlord’s trade may attend a property for the purposes of undertaking maintenance after giving 24 hours’ notice, see s48(2)(d) of the RTA. This did not happen here. The Harris’ were therefore entitled to refuse his entry but did not in the interests of being amicable and polite.
I accept Ms Foote’s evidence that Jade did not arrange this attendance however as official landlord in this relationship, Jade was responsible to the tenants to ensure that the attendances by the owners and the plumber were undertaken in accordance with the RTA.
I consider the owners’ lengthy attendance at the property disrespectful of what the Harris’ were dealing with at the time, and unnecessary. They were aware their presence was difficult for the Harris’ from when they arrived (as noted in their statement) and yet persisted in their stay and work despite that. They could see the Harris’ were moving things and loading them into their truck and yet still parked in the drive for a period and left piles of green waste on the accessway. Their extended presence was naturally unsettling for the Harris’.
On the basis of the above I find that the landlord failed to give adequate notice of the plumber’s attendance in breach of s48(2)(d) of the RTA. I also find that the owners breached the tenants’ quiet enjoyment of the property on 16 and 17 March in circumstances that amount to harassment. Accordingly, they have committed unlawful acts.
I do not consider the landlord’s actions with respect to the bond discussions a breach of s38 as they are entitled to discuss claims against the bond and damage at their property. Whilst there were misunderstandings here, I do not find any ill intent, just an intention to resolve the matter which they did by agreeing to the bond being refunded to the tenants.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.
I find the intentional element of s109 met as the owners were longstanding landlords and the property managers were aware of the law and accordingly their responsibilities. I therefore consider an award of exemplary damages and in doing so note the following factors: i. The effect on the tenants of the owners’ actions was extensive. It exacerbated their moving stress and meant they had to alter their plans to an extent. ii. The stress was such that they did not have their pre-planned celebration at the house just prior to vacating and they have given evidence it created tensions within their own relationship. It certainly marred what could otherwise have been a happy time. iii. As I have stated earlier there was no evidence provided that the owners chose this time other than to suit their own plans. No reason has been presented as to why the work had to be done prior to the property being returned to them in a matter of days. This shows a disregard for the tenants’ needs. iv. It is clearly in the public interest for landlords to uphold their responsibilities under the RTA and in particular those that impinge on a tenant’s right to privacy and enjoyment of their home.
Having assessed all of the above, I find that an award of $750 exemplary damages for the two breaches of the RTA established above justified.

Did the landlord comply with their obligations with respect to insurance?

Section 13A(2) of the RTA requires a landlord to include in the tenancy agreement a statement as to the insurance cover for the home. This has been complied with here.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) RTA. This process was also complied with here.
Accordingly, as discussed at the hearing, Jade has complied with their obligations with respect to the insurance over the premises. Filing fee
Because Mr and Ms Harris have substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4555629 — Exemplary damages at 179 Raumati Road, Raumati Beach, Paraparaumu 5032

At a glance

Tenancy Tribunal case 4555629 — Exemplary damages at 179 Raumati Road, Raumati Beach, Paraparaumu 5032

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord comply with their obligations with respect to insurance?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord comply with their obligations with respect to insurance?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions