Published tribunal order
Tenancy Tribunal case 4601069 — Tenancy dispute
Decided 24 Oct 2023 · Published 24 Oct 2023 · Application 4601069
- Exemplary damages
- Harassment
- Healthy homes
- Mould & damp
- Smoke alarms
- State of repair
- 14-day notice
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 the Tenant’s name and identifying details.
- The Tribunal orders that the rent to apply to this tenancy from 11 October 2023 is $660.00 per week, which the Tribunal assesses as the market rent for the property.
- Utrust Property Management Limited as Agent for Pan Luo must pay [The tenant/s] $870.00 immediately.
- The landlord must carry out the following work to the premises, which must be completed by 30 October 2023: a. Repair cracked window in bedroom
- If the landlord fails to comply with the work order by 30 October 2023, the tenant may undertake the work and charge the landlord the costs of this work up to $500.00. These costs may be set off against rent payable.
- The claim that the landlord interfered with the reasonable peace and comfort of the tenant amounting to harassment has been proven. However, no damages have been awarded.
- All other claims are dismissed.
Reasons
- Ms Xue appeared for the landlord and was initially supported by Mr Wang who left after the morning tea break. The tenant appeared. The tenant has been assisted by a lawyer who, although did not represent them at this hearing, had prepared detailed submissions containing the claims and evidence.
- The tenant’s claim was filed on 09 June 2023, the landlord counterclaim on 29 June 2023.
- The tenant seeks: (i)An order determining whether the rent of $660.00 was paid on the week of 17 January 2023, (ii)An order declaring the rent increase is above market rent, The tenant claims: (in brackets is the damages or other remedy sought) (iii)The landlord has failed to maintain the property in a reasonable state of repair (exemplary damages of $3,600.00 and a work order to replace a broken window in one bedroom), (iv)The landlord has failed to comply with the smoke alarm regulations (exemplary damages $3,600.00) (v)The landlord has breached their right to reasonable peace comfort and privacy and to an extent amounting to harassment (exemplary damages $3,000)
- The landlord claims: (i)That the tenant owes rent arrears of $570.00, (ii)That the tenant has failed, without reasonable excuse, to allow the landlord to conduct inspections, and to gain access to the property for the purposes of carrying out repairs and maintenance (exemplary damages $1,500.00)
- Both parties seek reimbursement of the filing fee.
- The onus of proving these claims rests with the respective applicants. The standard of proof required in on the balance of probabilities. Each party must establish, more likely than not, that the other has breached to tenancy agreement of provisions of the Residential Tenancies Act 1986 (The “Act”). An order determining whether the rent of $660.00 was paid on the week of 17 January 2023
- The tenancy commenced on 16 February 2021, with an initial weekly rent of $640.00. The tenancy was initially for a fixed term and became periodic on 16 February 2022. On 26 March 2022, the then landlord increased the rent to $660.00, effective 25 May 2022. On 04 January 2023, there was a change of landlord to Utrust. Ms Xue provided the tenant with a new bank account number and requested they arrange for future rent payments, made directly by Work and Income (“WINZ”), be paid into this new account. The tenant states that they visited WINZ, spoke with their Case Manager and provided the new details. Despite doing so the next payment due on 10 January 2023 was paid into the former landlord’s account in error. This mistake was discovered, and the payment retrieved by the landlord.
- The subsequent payment, due on 17 January 2023, was not received by the landlord. Shortly afterward the landlord sent an automated text message to the tenant advising that the payment had not been received. The matter remained unresolved and on 26 March 2023 the tenant sought legal advice. The tenant has produced an email from WINZ showing that on 17 January 2023 three payments of $366.75, $73.25, and $220.00, making up a total of $660.00, was transferred by WINZ into an account attributed to Utrust. Each payment had a reference. However, in a table of payments, also prepared by WINZ, the payment concerned is shown as having been made, again, into the former landlord’s account. The landlord has provided bank statements from both their own account and that of the former landlord for the period concerned. The payment is not recorded as having been received by either party. Ms Xue has also produced an email from the landlord’s bank confirming that no payment(s) were received from WINZ on or about that date.
- While WINZ may make rent payments on the tenant’s behalf, it is the tenant who remains responsible for those payments as per the tenancy agreement. To make the order sought by the tenant I must be satisfied that the payment was received by the landlord. Based on the material before me, I cannot be satisfied that it was received by the current or previous landlord in error. Except for this missing payment, all other payments have been made by the tenant when due.
- Ms Xue has provided an updated rent summary for the period leading to the change of landlord on 04 January 2023. According to the summary, the tenant in fact had a rent credit of $110.00, indicating that the shortfall following the missed payment was $570.00, and not $660.00.
- The situation is further complicated by the fact that the notice to increase the rent from $640.00 to $660.00, effective 25 May 2022, was invalid. The notice was served by email after 5pm on 26 March 2022 and did not allow for effective service as the next working day which was Monday 28 March 2022. The requirement in section 24 of the Act that the notice period for any rent increase be at least 60 days was not met. The landlord does not dispute this fact.
- Despite the notice being invalid the tenant made the increased payments, resulting in 71 over payments of $20.00 each between 25 May 2022 to 10 October 2023 totalling $1,420.00. This calculation does not include the missing payment of 18 January 2023. Deducting $20.00 from this missing payment reduces it from $570.00 to $550.00.
- This $550.00 should be offset against the overpayment owed to the tenant. Consequently, the landlord may retain $550.00 of the overpayment of $1,420.00 and return $870.00 to the tenant. An order declaring the rent increase is above market rent,
- On 08 August 2023, the landlord gave notice to increase the rent from $660.00, which has been determined was invalid, to $710.00 effective 08 October 2023. The notice was served correctly and provides at least 60 days’ notice. There has been a discussion as to whether the previous invalid rent increase has also served to invalidate this notice. In my view it does not.
- Section 24 (1) (b) of the Act provides that the notice of increase shall “specify the amount of the increased rent and the day on which the increased rent shall become payable”. The notice clearly states that from 08 October 2023, the new rent will be $710.00 per week.
- Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
- In the case of Frisk and Associate Limited [2003] NZDC 17698, the Court confirmed when dealing with applications under section 25, the Tribunal must first determine what the market rent is, then decide if the rent charged substantially exceeds the market rent.
- The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount.” The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant.’ Some earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent. However, a rule of thumb based on a specific percentage has no legal status and is not appropriate where rents rise at a rate significantly above income inflation.
- The test for market rent is the amount “a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay for the tenancy.”
- The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
- The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
- The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
- It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
- The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
- Photographs of the property, both inside and outside, have been provided. The property is brick and tile and was constructed in 2017. The property is situated at the end of a long concrete driveway. There are similar properties nearby that are mainly used for student accommodation. The property has four bedrooms, two full bathrooms containing shower and toilet, kitchen, open plan dining / lounge, and laundry. There is no garage for parking.
- The landlord states that the property is provided furnished with beds in each room, table and chairs, settee, fridge and washing machine. The landlord states that the property is usually marketed to students emphasising the added value of these chattels. The tenant disputes the added value, stating that the beds were mouldy and stained, and that the washing machine and fridge both ceased working and had been replaced at their own expense. The landlord states that the previous tenants were overseas students who left the country and were unable to return for Covid. As there was a decrease demand by students the property was offered to the tenant, who has two small children aged 3 and 2. While there is a small area of grass along one side of the property, it is not suitable for children to play. Apart from this small area of grass, the property is essentially surrounded by a concrete driveway, making it unsuitable for families with young children.
- Both parties have referred to bond data for the area collected by Tenancy Services. The data shows that of the 237 bonds lodged for 4-bedroom houses in the area between 01 February 2023 and 31 July 2023, that the median weekly rent was $620.00, the lower quartile $590.00, and the upper quartile $650.00. The rent increase in this case would place the property above the upper quartile.
- Both parties have produced advertisements for four-bedroom, two-bathroom properties nearby. These properties include standalone houses and townhouses, which, due to their limited recreational spaces, such as grassy areas and lawns, could arguably be considered comparable.
- Properties referred to by the tenant: (a) Modern townhouse, three bedrooms, four bathrooms, one garage, $620.00 per week. (b) Modern townhouse, four bedrooms, three bathrooms, one garage, $660.00 per week. (c) Modern townhouse, four bedrooms, two bathrooms, one garage, $620.00 per week. (d) 1970’s standalone house, four bedrooms, two bathrooms, one garage, $630.00 per week. (e) Modern townhouse, four bedrooms, two bathrooms, one garage, $695.00 per week. (f) 1970’s standalone house, four bedrooms, two bathrooms, $635.00 per week.
- Properties referred to by the landlord (a) 1970’s standalone house, three bedrooms, study, two bathrooms, garage, $640.00 per week. (b) 1980’s standalone house, four bedrooms, two bathrooms, garage, $720.00 per week (This property is managed by the landlord).
- Ms Xue submits that the increase to $710.00 will not take the rent to a level where it exceeds the market rent by a substantial amount. Ms Xue points to the property managed by the landlord, which is comparable, and being let for $720.00 per week. Ms Xue submits that the rent data only covers a limited period, is simply an average, and that some landlords may increase the rent but not seek a bond top up. Ms Xue submits that on its own bond data is insufficient. I agree with Ms Xue’s submission that the determination will involve an analysis of the bond data, the property itself, comparable properties in the area, and other factors making the property desirable.
- Ms Xue disputes, despite agreeing for the removal of the beds, that there was anything materially wrong with the furnishings provided. She adds that for students, to whom the property was usually marketed, furnishings and minimal maintenance grounds would be attractive. Both factors, Ms Xue stated served to enhance the desirability and rentability of the property. The landlord did not dispute that the dishwasher and washing machine had been replaced at the tenant’s cost.
- At paragraph 39 of their written submission the tenant states “... this property falls within the median quartile for rent and the increased amount should be based on that. 10% above the market rent is $671 per week. The landlord has proposed a significantly higher increased amount.” The tenant goes on to submit that a market rate be set at $660.00 per week.
- The question to be determined is whether the rent charged for the property is at a market rate, and if not, whether the Tribunal should substitute its own assessment of what the market rate will be.
- To apply any bond data assessment, it is necessary to consider whether the property should fairly fall within the lower quartile, median or upper quartile ranges.
- To justify a rent increase to $710.00 per week, the landlord must consider the property to fall within the upper quartile. The tenant considers it to be within the median range.
- As it stands, the rent presently charged of $640.00 per week, considering that the rent increase of 25 May 2022 to $660.00 was invalid, places the property within the median range. In my view to place the property squarely above the upper quartile would require a standard and quality of property and chattels greater than those present.
- Considering the advertisements for comparable properties in the area, the bond data, and the other matters raised by the landlord, including what they submit is the desirability of furnished properties and minimal maintenance grounds, I assess the market rent to be $660.00 per week. The rent of $710.00 proposed by the landlord will result in a rent that exceeds the market rent by a substantial amount. Taking these factors into account, the Tribunal assesses the market rent for the property to be $660.00 per week. This rent is to apply from 11 October 2023. Failing to maintain the property
- The tenant claims that the landlord has failed to maintain the property in a reasonable state of repair, in particular a cracked window in one of the bedrooms which, despite raising with the landlord in January 2023 remains unresolved. The tenant is seeking an order compelling the landlord to address the matter.
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair.
- A “reasonable” state of repair is not an absolute standard and must be assessed objectively and will take into account the age and character of the property.
- The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
- In Collins and Bertoni v Professionals Hutt City Limited, DC Wellington CIV 2009- 085-001431, 24 February 2010 the Court stated: “I consider that the obligation of the landlord, under section 45, is to investigate and repair the defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”.
- The obligation under section 45(1)(b) corresponds with that under section 40(1)(d), which requires the tenant to notify the landlord as soon as possible after the discovery of damage or need for repairs.
- Where the Tribunal finds, the landlord has failed to comply with section 45(1)(b), it may make an order for the landlord to carry out the work. See section 78(1)(e) of the Act.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) of the Act
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC) (b) of the Act.
- Breaching any of the obligation in section 45(1)(b) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A of the 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) of the Act.
- The tenant has produced a photograph showing a broken window in a bedroom nearest the driveway. The window appears to have a crack in it. The tenant states that they reported it to the landlord at their first property inspection on 12 January 2023. The tenant states that shortly afterward, an associate, who is a builder, inspected the window and formed the view that the damage was consistent with having been caused by an earthquake. The tenant states that later in January 2023, they sent a letter from the associate and a photograph of the window to the landlord. Despite raising the matter on numerous occasions, it remains unresolved. Furthermore, that the landlord is now asserting that it is damage beyond fair wear and tear and the responsibility of the tenant.
- The landlord denies being advised at the inspection and has produced the inspection report concerned which does not record the matter. The landlord states that the first they were advised was in an email on 26 June 2023, to which the tenant attached the letter and photograph for the first time. Despite forming the view that it was the tenant’s responsibility the landlord instructed a glazier to visit the property and repair the window. The landlord states that, despite arranging a suitable time with the tenant, when the glazier attended, no one was home. The landlord has produced a letter from the glazier, who states that in their 40 years of experience, they have never repaired a window in [redacted] damaged by an earthquake, and that in their opinion the damage is consistent with the window having been struck by an object. I note that the glazier did not physically inspect the window and has based their opinion on the photograph provided by the tenant.
- The email sent to the landlord on 26 June 2023 refers to having raised the issue previously, stating “explained and documented some time ago”. A tenancy inspection report completed by a property manager, who is not in Court, dated 01 May 2023 records, “Bedroom 1 – The window is broken because of earthquake several months ago”. Despite their belief that the tenant is responsible for the window, the landlord has the overarching responsibility under section 45(1)(b) to maintain the property in a reasonable state of repair. While the delay in addressing the matter has partly been due to the unavailability of the tenant in August 2023, there is however no evidence that the landlord has attempted since then to address the matter. Based on the evidence, I am satisfied that the landlord has failed to meet their obligations. I make the work order sought and direct that if it is not completed by the specified date that the tenant can arrange repair and offset the cost against the rent.
- Dealing with the claim for exemplary damages. Initially the landlord did attempt to remedy the matter, and, but for the unavailability of the tenant the window may have been repaired in August. However, thereafter the landlord’s failure to address the matter has been intentional. The tenant states that due to health and safety concerns they now use the bedroom themselves where previously it had been a children’s room. The tenant has also expressed a concern that the window compromises the weather tightness of the property, which makes it essential for the landlord to address the matter. Considering these factors and the other matters set out in section 109 of the Act, I am not satisfied that an award of exemplary damages is warranted in the circumstances. Missing smoke alarms
- The tenant states that until March 2023, and following the intervention of their lawyer, that there were no smoke alarms in the property. The tenant denies this.
- Section 45(1) (ba) of the Act requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
- The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, (“Regulations”) which require landlords to have qualifying smoke alarms installed and operational.
- Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling. Similar obligations apply to boarding rooms.
- Breaching the obligation in s 45(1) (ba) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A of the 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 s 109(3) of the Act).
- The tenant has produced a photograph of a part of the kitchen / dining room which they state shows an empty smoke alarm bracket. The tenant states that the photograph was taken during a viewing and prior to the commencement of the tenancy. The tenant states they took a second photograph of another empty smoke alarm bracket in the lounge but is unable to produce it for the Tribunal. The matter appears to have been raised with the landlord for the first time in March 2023.
- The landlord has produced a letter from the original owner / builder of the property who states that in 2017 the property had smoke alarms. The landlord has also produced a Council report dated 2017 recording the presence of smoke alarms. While arguably relevant, the evidence is not particularly probative. There is no pre tenancy checklist. The landlord has also produced a letter from the previous landlords who state that smoke alarms where present at the commencement of the tenancy in February 2021. The landlord has also produced a Healthy Homes report dated 28 January 2023. Although the report itself does not cover smoke alarms, a photograph taken of the heat pump in the lounge shows a smoke alarm nearby. The tenant acknowledges this.
- The landlord states as the previous tenants were unable to return from overseas the property remained empty over the Christmas / New Year period until the commencement of the tenancy. When asked why the landlord had not checked the alarms at their first inspection in January 2023, Ms Xue stated that the focus was on damage caused by one of the occupants. Ms Xue states that upon receiving the lawyer’s letter in March they immediately instructed a tradesperson to visit the property and replace / install any smoke alarms required. The tenant states that the tradesperson installed two new alarms in the hallways closer to the bedrooms. The landlord did not personally inspect the property but understands that the alarms installed were in addition to the ones already there.
- The landlord has produced a floor plan recording the position of the original alarms. The alarm in the kitchen was not required under the Regulations; the alarm located in the lounge appears to be within three metres of the bedrooms. There is no evidence from the tradesperson concerned.
- The onus is on the tenant to establish that there were no smoke alarms at the commencement of the tenancy. The photograph taken of the heat pump in the lounge on 28 January 2023 clearly shows the presence of a smoke alarm nearby. The property remained unoccupied until the commencement of the tenancy. While the tenant may have taken a photograph of the bracket in the kitchen it was not an area in which a smoke alarm was required. After considering the evidence I am not satisfied that there has been a breach of the Regulations and the claim is dismissed. Interference with reasonable peace comfort and privacy amounting to harassment.
- The tenant claims the landlord has interfered with their reasonable peace comfort and privacy amounting to harassment.
- Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title of the landlord.
- Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- In the case of Smith v Floris, Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 38 (3) and Schedule 1A, and 109(3) of the Act.
- 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". See MacDonald v Dodds, CIV-2009-019-001524, District Court Hamilton, 26 February 2010.
- Black’s Law Dictionary defines harassment as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
- These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them.
- At paragraph [74] of their written submission the tenant states: “Since Ms Xue has managed the property, I have received hundreds of emails and text messages in relation to rental arears and maintenance. Just some of the arrear’s communication see attached and marked ....”
- The tenant refers to Tribunal decisions in which it was found that landlord’s letters to a tenant concerning rent arrears did not amount to an interference. In another the Tribunal finding that repeated unannounced visits by a landlord can amount to an interference.
- The tenant can only point to one occasion on which the owner of the property visited unannounced and to deliver some blinds. The tenant states that there were numerous other times when either property managers or tradespeople visited unannounced. The tenant, however, is unable to provide specific details such as dates and times.
- The tenant submits that while some communication about the missing rent payment may have been justified, the volume of emails and texts was in the circumstances excessive, amounting to harassment which caused emotional stress.
- Ms Xue states that the accounting software used by the landlord automatically generates an email message when it detects that the tenant’s rent is overdue. It appears that once arrears are detected, the systems self generates these notices at regular intervals.
- Ms Xue’s request that the rent be redirected to the landlords account was sent on 04 January 2023, the day after the statutory New Year holiday period. The tenant made an appointment to speak with their WINZ case manager as soon as possible and before the next rent payment was due on 10 January 2023. Despite the tenant’s best efforts, the payment was made by WINZ to the previous landlord’s account. The previous landlord owns the property, and Ms Xue was able to retrieve the funds.
- The payment due on 18 January 2023 was apparently made by WINZ but not received by the landlord or previous landlord. The next payment due on 25 January 2023 was received, as has every payment thereafter. The rent records also show that leading up to the change of landlord on 04 January 2023 that all rent payments were made.
- Despite having knowledge that the tenant was actively engaging with WINZ to resolve the matter, which was largely out of the tenants’ hands, between 18 January 2023 and 21 January 2023 the landlord caused or allowed to be sent 6 messages concerning rent arrears, amounting to one payment.
- While the landlord is entitled to receive rent when due and to remind tenants of their obligations, armed with the knowledge that the tenant was attempting to resolve the matter, the amount of the arrears, the fact that it involved one payment, the timing of the requests over the holiday period , and the history of rent payments leading up to the change of landlord, I am of the view that the volume of messages sent by the landlord was excessive and resulted in an interference with the tenant’s reasonable peace and comfort.
- Has the interference amounted to harassment? The answer is yes. The landlord’s actions were directed at the tenant, in the given circumstances, as known to the landlord, they served no legitimate purpose and caused the tenant substantial emotional distress.
- The landlord is evidently vigorous in pursuing and acting in what they view as the best interests of the owner. Although the landlord has allowed these messages to be generated, and sent, which served no legitimate purpose and caused the tenant stress, I am not satisfied that the landlord did so with the “intention” of harassing the tenant. I make no award for exemplary damages. Landlord’s claims
- Concerning the landlord’s claim that the tenant owes rent arrears of $570.00. As stated above, I am not satisfied that the landlord received the rent payment due on 17 January 2023. The rent arrears are $550.00.
- Dealing with the landlords claim that the tenant has failed, without reasonable excuse, to allow the landlord to conduct inspections, and to gain access to the property for the purposes of carrying out repairs and maintenance, for which the landlord is seeking exemplary damages $1,500.00.
- A landlord may enter the premises during the tenancy 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) of the Act.
- Section 48(2)(b) of the Act provides that a landlord may enter the premises for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks.
- Section 48(2) (d) provides that a landlord may enter for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.
- Failing to allow the landlord entry without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A of the Act.
- The landlord claims there have been 3 occasions on which the tenant has breached section 48(2)(b) by failing without reasonable excuse to allow inspections, and 3 or 4 occasions where the tenant has failed without reasonable excuse to allow maintenance work to be carried out under section 48(2)(d) of the Act.
- For each alleged incident, the landlord must establish that the notice advising of the inspection was valid (served pursuant to section 136 of the Act), that the tenant has failed to allow the inspection, and that they did so without a reasonable excuse. If the landlord fails to establish one or more of these requirements, the claim will be dismissed.
- Prior to an inspection on 05 May 2023 the landlord did not have a key to the property.
- The landlord states that on 04 April 2023 they sent an email notice to the tenant advising of an inspection on 13 April 2023. The tenant replied, requesting that the inspection be at 3pm. Ms Xue states that on 13 April 2023, at the appointed time, the property manager, who is not Ms Xue, went to the property. Ms Xue states that upon announcing their arrival the property manager was told to “fuck off” by the tenant, with no other explanation given. The tenant denies telling the property manager to “fuck off” but recalls that either herself or her children were unwell. There is no evidence from the property manager concerned, further, unwellness is a reasonable excuse. Based on the evidence produced, I am not satisfied that there has been a breach.
- Later that day the landlord sent another email notice advising of an inspection on 26 April 2023. Once again, the tenant requested that it occur between 3pm and
- 15pm. Ms Xue states that the property manager went to the address but was again denied entry. There is no evidence from the property manager concerned.
- Later that day the landlord sent another email notice advising of an inspection on 27 April 2023. Once again, Ms Xue states that the tenant agreed to the inspection and requested that it occur in the afternoon. Once again Ms Xue states that the property manager concerned was told to “fuck off.”
- Ms Xue has produced an email sent by the property manager to the tenant on 27 April 2023 which reads “Hi [The tenant/s], I just ringed you for the inspection, but you said I cant come to your property and told me to fuck off. I was wondering when I can come over for the inspection....” Ms Xue then sent another email reminding the tenant that they were obliged to cooperate with inspections. Another inspection was arranged and conducted on 01 May 2023, during which the landlord secured a key for the property.
- The tenant cannot recall telling the property manager to “fuck off” on 27 April 2023, but states that at the material time they were being subjected to domestic violence and under considerable stress. The wording of the property managers email suggests they did not actually visit the property and attempt the inspection. Ms Xue states that English is not the property managers first language, and to her knowledge they did attempt to visit.
- A tenant who becomes aware that the landlord has arrived at the property, having been served notice of an inspection, and then turns them away without a reasonable excuse may commit a breach. Based on the evidence produced I am not satisfied that this has been established to the required standard. It would have been prudent for the property manager to provide a written statement or attend the Tribunal in person to give evidence. The claim that the tenant has failed without reasonable excuse to allow inspections is dismissed.
- Also of relevance is the fact that the landlord did not have a key. This was through no fault on the part of the tenant. Once a notice to inspect has been properly served, although ideally parties will liaise as to suitable times, ultimately the landlord has the right to enter within the times specified in the Act and conduct the inspection without the tenant being present.
- Dealing with the second part of the claim, that the tenant upon being given notice, failed without reasonable excuse to allow maintenance to be carried out, the landlord has produced text exchanges between the property manager and the tenant concerning maintenance work, particularly outstanding matters referred to in the email dated 26 June 2023. The landlord states that despite best endeavours, tradespeople had difficulty dealing with the tenant to complete the work.
- Ms Xue states that their principal tradesperson refused to deal with the tenant, who they stated was threatening and abusive. Another tradesperson who was engaged also advised the landlord they found it difficult to deal with the tenant. The tenant states that the tradespeople would often turn up unannounced and when they did work the tenant questioned their competence. Despite this I have been informed that all the maintenance, apart from the window over which there has been a dispute as to liability, has now been completed.
- Unlike the inspections there have been no notices produced. All the correspondence concerning the maintenance appears to have been by text message. There is no provision in the Act for the service of notices by text message. I am not satisfied that there has been valid notice. The claims are dismissed. Costs
- Both parties seek reimbursement of their respective filing fees. Arguably, both have at least been partly successful, triggering the Tribunal’s discretion to order reimbursement of the filing fee. However, as reimbursing the filing fee to one would effectively cancel reimbursement to the other, and vice versa, I make no order for reimbursement. Name suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The landlord does not seek name suppression. They have in any event not been wholly or substantially successful. The tenant seeks name suppression. The tenant has not been wholly or substantially successful. The landlord opposes name suppression for the tenant. It is a matter for the Tribunal to determine.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
- During the hearing, the tenant alluded to matters concerning domestic violence at the property. The Tribunal has previously found that domestic violence constitutes grounds for ordering name suppression. Additionally, I observed the tenant’s distress during the hearing. After considering the matter I am satisfied that there are grounds to exercise the discretion in section 95A (4) and order suppression of the tenant’s name and the address of the property.