What was Tenancy Tribunal case 4608852 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4608852?

Breach Of Quiet Enjoyment: $760.00 awarded to tenant; Compensation: $116.60 awarded to tenant; Compensation: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4608852?

The dispute type was not classified.

Where can I read the official tribunal order for case 4608852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9526917-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4608852 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4608852?

Breach Of Quiet Enjoyment: $760.00 awarded to tenant; Compensation: $116.60 awarded to tenant; Compensation: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4608852?

The dispute type was not classified.

Where can I read the official tribunal order for case 4608852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9526917-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4608852 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4608852 — net $1,097.04 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for early expenditure	$116.60	Compensation for early expenditure
Compensation for attending viewings	$200.00	Compensation for attending viewings
Breach of quiet enjoyment	$760.00	Breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,097.04
Total payable by Landlord to Tenant	$1,097.04

On 21 June 2023 the tenant applied to the Tribunal for moving costs and other compensation totalling $14,000.00.

In response, the landlords submitted that there was a flat-sharing agreement. Following a hearing to consider jurisdiction, the Tribunal held on 24 July 2023 that there was a residential tenancy under the Residential Tenancies Act 1986 (the Act).

Both parties attended the further hearing on 9 October 2023, which addressed the tenant’s substantive claim. Background

A summary of the background is as follows: • The tenant lived at the premises from 12 September 2020 to 27 May 2023 with his young daughter. A weekly rent of $360.00 was paid together with a bond of $360.00 that was not lodged with the Bond Centre. The rent included internet and water. At the end of the tenancy the bond was refunded to the tenant. • There was no written tenancy agreement or flat-share agreement. A draft had been prepared but not signed for the previous tenant (the tenant’s brother). • The tenant occupied the downstairs area of a 2-storey residential home. The landlords lived upstairs. • On 10 April 2022 the landlords gave notice of a rent increase to $380.00. • On 12 April 2023, the landlords emailed the tenant to say one of their friends was coming to visit them and would like to stay downstairs. The landlords gave the tenant 3 weeks’ notice to look for a new home, the last day of his stay being 5 May 2023. • When the tenant had difficulty finding a new home, the landlords agreed to extend the tenants’ stay for 3 weeks to 26 May 2023. • The tenant moved out on 27 May 2023. Relevant law

Section 51 of the Act provides the circumstances in which a landlord may terminate a periodic tenancy by notice. For example, the tenancy may be terminated by giving 63 days’ notice, if the owner requires the premises as the principal place of residence for at least 90 days for the owner or a member of the owner’s family. The landlord may terminate the tenancy by giving 90 days’ notice for other reasons, such as when the property is to be marketed for sale or to carry out extensive renovations.

It is an “unlawful act” to give a notice of termination which the landlord knows they are not entitled to give, for which exemplary damages up to a maximum of $6,500.00 may be awarded (section 60AA).

The Act requires tenancy agreements to include information about insulation, compliance with the healthy homes standards, and insurance. It is an “unlawful act” not to provide this information (section 13A).

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. The tenant is entitled to have quiet enjoyment of the premises (section 38 of the Act).

Exemplary damages may be awarded where the Tribunal is satisfied that a party has intentionally committed an “unlawful act’ and where, having regard to the factors set out in section 109(3) of the Act, it would just to do so. Analysis - liability

The landlords gave notice to terminate the tenancy on 12 April 2023 because they had friends coming to stay with them. A landlord cannot terminate a tenancy for this reason or on the notice period given. It follows that the landlords breached section 51 of the Act.

In acting as they did, the landlords had in mind the 2 weeks’ notice required under the flat-share agreement they had prepared. In giving 3 weeks’ notice, the landlords believed they were giving more notice than was strictly necessary. The landlords extended the notice period by 3 weeks when the tenant had trouble finding a new property. They indicated at the hearing that they would have been willing to extend it further, although the correspondence at the time explicitly ruled out a second extension.

I am not satisfied that the landlords knew they had no legal authority to give notice to terminate. They were acting consistently with their (mistaken) view that this was not a tenancy but a flat-share arrangement. They said they had spoken to Tenancy Services and were advised that this was a flat-mate situation. It follows that it would not be just to award exemplary damages.

The tenant also relied on various provisions in the Act where exemplary damages can be awarded, including for failure to ensure the tenancy agreement is in writing, failing to include certain information in the tenancy agreement, and not complying with the landlord’s duties on receipt of the bond. These claims all stem from the original mistaken decision, which I accept the landlords made in good faith, that they did not have to comply with the Act.

I find it would not be just to award exemplary damages for such breaches. It is necessary in any event to assess the compensation that should be awarded for breach of section 51 of the Act. But in terms of exemplary damages, the landlords ought not to be penalised twice for the same error.

The tenant claimed exemplary damages for retaliatory notice. He said the landlords gave notice immediately after he told them there was an issue with WINZ and that his rent might not be paid that week. The landlords said the timing of the notice was just a coincidence.

The correspondence suggests the motivation behind the timing of the notice was the landlords’ wish for their friends to stay with them. I am not satisfied that the termination notice was retaliatory. Analysis - damages

The decision to terminate the tenancy without the necessary statutory grounds was a breach of section 51 of the Act and a breach of the tenant’s quiet enjoyment.

The Tribunal must do its best to assess reasonable compensation arising from a breach of the tenancy agreement or the Act, even if there is an element of speculation (Phipps v Consolo (District Court Wellington, CIV-2009-085-232, 14 December 2009)). The assessment of compensation is a question of fact. The contractual measure of damages is to place the relevant party in the position they would have been in if the contract had been performed, so far as money can do so.

While general damages for emotional distress may be awarded in the Tribunal, there must be a breach of the tenancy agreement or the Act which causes significant distress or anxiety. In Palmer v Housing New Zealand (No.2) (Tenancy Tribunal Auckland, TT 2378/92, 25 August 1993) the Tribunal considered the nature and duration of the breach, and its effect on the parties, when determining damages. Awards are usually modest.

The tenant claimed various costs which he said were caused by having to leave the tenancy. These totalled $5,225.00. For example: • Moving costs ($600.00) • Carpet cleaning ($160.00) • Cleaners ($250.00) • Bond ($2,240.00) • Weeks’ rent in advance ($560.00) • New fridge and washing machine ($1,175.00) • Petrol cost for house viewings ($240.00) • Stress and anxiety caused by having to find new accommodation and the risk of being made homeless with his young daughter.

The tenant also claimed various ongoing additional expenses calculated on a 52-week basis, including additional rent, additional time to take his daughter to school, internet and power charges and lawn mowing costs. These totalled $14,310.00.

Some of the moving costs are expenses that the tenant could have expected to incur at some point anyway, such as the cleaning costs. There was no evidential support for the petrol costs, and the landlords said the tenant had moved to a property approximately 10 minutes’ drive away. Some of the costs might be said to be caused by the tenant’s decision to live in a more expensive property, with different facilities to those provided at the premises. Awarding the ongoing additional expenses on a 52-week basis would amount to ordering the landlords to fund the tenant’s living costs.

More realistically the financial loss to the tenant, in my view, is that he had to fund expenses earlier than he might have otherwise. The landlords could legitimately have decided to end the tenancy on 63 days’ notice if they wanted to utilise the whole house for at least 90 days. They were not bound to rent their property to the tenant permanently, and the damages that can be awarded should reflect this.

I award interest on the costs of moving, carpet cleaning, cleaning, financing a new bond, paying a weeks’ rent in advance, and having to purchase whiteware, which total $4,985.00. From this sum it is appropriate to deduct the bond of $360.00 refunded by the landlord.

It is straightforward to calculate interest using the online calculator created for the purpose of the Interest on Money Claims Act 2016, which uses an average of the 6-month term-deposit rate plus a 0.15% premium. Calculating interest from 12 April 2023 (the date of breach) to 9 October 2023 (the date of hearing) on expenses of $4,625.00 results in an award of $116.60. This compensates the tenant for the forced early investment/expenditure.

It is also appropriate to award a contribution towards the direct expenses of finding new accommodation. Although the cost of petrol has not been established, I accept that the tenant would have spent money attending viewings. At the very least, it would have taken up part of his time, possibly a significant part. The tenant said he went to 50-60 viewings. I award $200.00 for the time and expense of finding new accommodation.

Finally, it is necessary to consider an award for breach of quiet enjoyment, including stress and anxiety. This was a difficult time for the tenant, who had some health issues and found it hard to pack up his belongings. The landlords tried to help by referring the tenant to a friend, but the tenant had the pressure of finding a suitable home, that he could afford, in the area where his daughter went to school. I consider that an award of $760.00 (2 weeks’ rent) provides reasonable compensation for the breach of quiet enjoyment and the stress this caused. Filing fee and name suppression

The tenant requested name suppression. This is granted.

The tenant has succeeded in showing there was a breach of the Act and has been awarded compensation. It is appropriate to award the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4608852 — net $1,097.04 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for early expenditure	$116.60	Compensation for early expenditure
Compensation for attending viewings	$200.00	Compensation for attending viewings
Breach of quiet enjoyment	$760.00	Breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,097.04
Total payable by Landlord to Tenant	$1,097.04

On 21 June 2023 the tenant applied to the Tribunal for moving costs and other compensation totalling $14,000.00.

Both parties attended the further hearing on 9 October 2023, which addressed the tenant’s substantive claim. Background

The decision to terminate the tenancy without the necessary statutory grounds was a breach of section 51 of the Act and a breach of the tenant’s quiet enjoyment.

The tenant requested name suppression. This is granted.

The tenant has succeeded in showing there was a breach of the Act and has been awarded compensation. It is appropriate to award the filing fee.

Tenancy Tribunal case 4608852 — Tenancy dispute

At a glance

Tenancy Tribunal case 4608852 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions