Published tribunal order
Tenancy Tribunal case 4584389 — Exemplary damages at 10 Drumaness Road, Flat Bush, Auckland 2019
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 4584389
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details. 2.
Reasons
- Both parties attended the hearing held on the 11 December 2023.
- This decision should be read in conjunction with my decision of the 14 August 2023 where I determined that the tenancy was a separate residential premise and that [The tenant/s] was a tenant.
- The tenant is seeking exemplary damages for her claim that the landlord has terminated the tenancy without grounds.
- The landlord only filed their cross application on the 6 December 2023. They claim that the tenant left the property in a dirty condition and that the tenant damaged the property.
- The landlord is holding the tenant’s bond of $500.00. The tenant’s claim.
- The tenant claims that the landlord has breached their obligations under section 60AA.
- 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 21 days’ notice on the 20 April to end the tenancy on the 11 May 2023. .
- The landlord says that at the time he gave the notice he genuinely believed that he did not have a residential tenancy with the tenant and that she was his flatmate as per the flatmate agreement. In my decision of 14 August, I have set out my reasons as to why I have determined that the tenant has a residential tenancy of separate premises.
- The landlord submitted that as he did not act intentionally (in that he did not mean to commit the unlawful act because he thought it was lawful at the time) then he should not be liable for exemplary damages. In effect, he says that this was an innocent beach. He thought he was lawfully entitled to evict a flatmate as per the flatmate agreement with 21 days’ notice. 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 effect of the District Court’s decision is that a party cannot claim that they did not commit an unlawful act, simply because at the time of doing that act, they did not know that they were acting in breach of the Residential Tenancies Act.
- I therefore find that as the landlord intended to give notice, then they have committed a breach of s60AA as the notice they gave was only 21 days and not for any of the reasons for termination set out in the RTA.
- The purpose of the legislative changes in February 2021 which restricted a landlord’s right to give notice was set out by the Honourable Minister Faafoi in introducing the third reading of the Amendment Bill on the 4 and 5 August 2020, he said: The changes in the bill will improve tenants’ security and stability, while continuing to protect landlords’ interests in their property. Improving security of tenure means that tenants who are meeting their obligations will feel confident that they can remain in their homes. Insecure tenure can have a negative impact on health, education, and employment outcomes. This bill will improve tenants’ security by removing no-cause terminations. It’s simply not appropriate in 2020 for a person to be required to leave their home without knowing why. Landlords will only be able to end a tenancy if one of the specific reasons in the legislation applies, or by order from the Tenancy Tribunal. Landlords will be able to terminate tenancies for a range of fair and justified reasons, such as antisocial behaviour, or someone who is repeatedly behind in their rent. In addition, if a tenant has been charged by the police with physical assault against their landlord or another relevant party, the landlord can serve a termination notice, and a tenant must then vacate within 14 days.
- 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 tells me that eviction notice caused her considerable stress, she says she lost her job because she had to take time off work to look for other accommodation. The tenant, her son and mother were placed in emergency accommodation in a 2-bedroom apartment in [City]. She says that this apartment complex housed many other people in emergency housing and that there was anti- social behaviour at the complex. She says that she was fearful.
- Whilst I have found that the landlord acted intentionally, I understand that the landlord held a firm and genuine belief borne from what they were also told by others including their bank manger and real estate agent that the tenant was a flatmate not a residential tenant and therefore they gave her 21 days’ notice. I accept that the landlord did not set out to breach the provisions of the Act, despite doing so.
- I also note that the landlord allowed the tenant further time to stay at the property until she found other accommodation, but the tenant declined this offer.
- Taking the above factors into account and also taking into account the public interest, that tenants (especially those with young children) should have certainty of tenure without the threat of unlawful eviction, then I consider a smaller award of $800.00 to be appropriate in these circumstances.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant accepts that there were some stains on the carpet that needed to be removed. She says that she cleaned the best that she could in the short amount of time that she had to leave. She says that she was unable to clean because her flatmate was still living in the property. She is upset that her flatmate got her portion of the bond back and yet she is now being asked to pay for cleaning.
- The tenant and her flatmate are named as joint tenants on the tenancy agreement (flat share agreement) this means that they are jointly and severally liable for any costs of cleaning or repair of damages.
- I am satisfied from the photographs provided that the tenant did not leave the premises reasonably clean and tidy.
- I am also satisfied that the landlord had the property cleaned including carpet cleaning at a cost of $327.25 and the tenant should be responsible for that amount.
- The tenant accepts liability for the power bill.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- I am satisfied that the tenant carelessly damaged two walls at the property when she removed 3m hangers that removed paint work. I am satisfied that the landlord will need to have these walls repainted.
- I am also satisfied that the tenant stained the carpet. The landlord tells me that the stain in the carpet did not fully come out after cleaning.
- The stain has not been removed and the house has been re-let.
- The house was new at the beginning of the tenancy. The landlord sought costs of $750.00 the quote provided in evidence was not broken down as to how that amount was made up. The Tribunal sees claims by landlords for this type of damage on a daily basis and I consider the sum of $250.00 an appropriate amount to award for remediating these damages.
- I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. Filing fee and suppression.
- As each party has been somewhat successful, I do not award the filing fee to either of them and I grant them both suppression.