What was Tenancy Tribunal case 4614430 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 4614430?

Compensation: breach right to quiet…: $500.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4614430?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4614430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296560-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4614430 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 4614430?

Compensation: breach right to quiet…: $500.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4614430?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4614430?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9296560-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4614430 — Healthy homes

Claims and awards in Tenancy Tribunal application 4614430 — net $670.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failing to provide Healthy Homes compliance statement	$150.00	failing to provide Healthy Homes compliance statement
Compensation: breach right to quiet enjoyment	$500.00	breach right to quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$670.44
Total payable by Landlord to Tenant	$670.44

Claims and awards in Tenancy Tribunal application 4614430 — net $670.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failing to provide Healthy Homes compliance statement	$150.00	failing to provide Healthy Homes compliance statement
Compensation: breach right to quiet enjoyment	$500.00	breach right to quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$670.44
Total payable by Landlord to Tenant	$670.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s and Landlord’s name and identifying details.
[The landlord/s] must pay [The tenant/s] $670.44 immediately, calculated as shown in table below:
The notice to terminate the tenancy on 20 July 2023 is invalid.
All other claims are dismissed.

Reasons

The evidence was heard on 24 July 2023, this is a reserved decision.
Both the tenant and landlord attended the hearing and were supported by their respective partners.
The tenancy commenced on 08 February 2023 and is periodic. On 26 June 2023, the tenant filed a claim alleging: i. That the landlord had failed to include in the tenancy agreement a statement that the property complied, or will comply within the required period, with the Healthy Homes Standards. The tenant is seeking an award of exemplary damages. ii. That a notice to terminate the tenancy was without grounds, and further that the landlord had knowledge that they did not have grounds to issue the notice. The tenant is seeking a declaration that the notice is invalid, and an award of exemplary damages, iii. That the landlord has interfered with the tenants right to reasonable peace, comfort, and privacy and to an extent amounting to harassment. The tenant seeks compensation and exemplary damages.
The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
There is a fourth claim, in which the tenant alleges that the landlord has issued several notices for rent arrears, when the tenant was in fact not in arrears at the material time. The tenant is seeking a declaration that the notices are invalid. During the hearing the landlord acknowledged that they had issued the notices in error, based on their belief that the tenant had agreed, as is the usual practice, to pay rent in advance. This was not the case. Under the tenancy agreement the parties had in fact agreed that the tenant could pay rent when due, and not in advance. Moving forward the landlord states they will not issue any more notices unless the tenant fails to pay rent when it is due. I do not see the need to make any declarations in this matter. Failure to provide a Healthy Homes Standards compliance statement.
Under section 13A(1CA) of the Act, the landlord must provide a statement with the tenancy agreement stating whether the property comply or will comply with the Healthy Homes Standards. Failure to do so constitutes an unlawful act for which, under section 13A(1F) (a) and Schedule 1A of the Act, exemplary damages of up to $750.00 may be awarded.
The landlord states that while they were aware that the Healthy Home’s Standards applied to this tenancy, they believed that they had 120 days in which to comply. This is correct. However, the landlord appears to have been unaware of, or misunderstood, the other provisions in the Act, such as those relating to Healthy Homes compliance statements under section 13A(1CA).
I am satisfied that the landlord has failed to meet their obligation to provide this statement, and by doing so has committed an unlawful act
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied it would be just to do so. The Tribunal must consider 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.
Dealing with the matters in section 109(3) of the Act. There has been significant publicity about the Healthy Homes Standards. It must be presumed that landlords are aware of their obligations. Ignorance of the law is no excuse. Compliance with the provisions relating to healthy homes is in the interest of the parties and the public. However, the effect of the breach on the tenant appears to have been minor. Considering these factors, I am satisfied that an award of $150.00 exemplary damages is appropriate. Invalid notice issued with knowledge not entitled.
Under section 51(2)(f) of the Act a landlord may seek to end a periodic tenancy on the basis that they intend to undertake extensive building work, and that it would not be practical to do that with the tenants in occupation of the property.
Under section 60AA, a landlord commits an unlawful act if they give or purport to give a notice to terminate the tenancy or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled to give notice.
Section 51(3) of the Act provides that every notice to terminate a tenancy must be in writing, identify the premises to which it relates, specify the date by which the tenant is to vacate the property, if the notice is given by the landlord, set out the reasons for termination, and be signed by the party giving the notice or the parties agent.
Section 51(4) of the Act states: In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non-compliance is not such as to mislead or affect unjustly the interests of the recipient.
On 17 April 2023, the landlord hand delivered the tenant a notice terminating the tenancy on 15 July 2023. The notice was issued on the basis that the landlord intended carrying out extensive building work and that it would not be practicable for the tenant to remain in occupation while it was being completed. On 18 April 2023, lawyers for the tenant wrote to the landlord’s partner stating that the notice had not been issued for genuine reasons, was incomplete, and had incorrect dates. In a second letter dated 19 April 2023, lawyers for the tenant further stated that the notice had been issued by someone who had been incorrectly recorded as the landlord on the tenancy agreement. Persuaded that the notice was invalid for form, that it was one day short, although not accepting there was insufficient grounds, the notice dated 17 April 2023 was withdrawn, and a second notice issued on 20 April 2023, terminating the tenancy on 20 July 2023.
Sufficiency of grounds aside (which I will deal with later), an issue has arisen surrounding the validity of the second notice. The contention by the tenant’s lawyer that the wrong person had been designated as the landlord on the tenancy appears to have led to the second notice being issued in the name of [Landlord 2].
Section 2(1) of the Act defines the landlord as the grantor of a tenancy and where appropriate includes a prospective landlord, former landlord, a lawful successor of the landlord, a personal representative of a deceased landlord, and an agent.
The tenancy agreement produced clearly identifies [Landlord 1] as the landlord, with his sole name and signature on the document. Nowhere in the agreement is it indicated that he is acting as an agent of behalf of [Landlord 2]. All breach and recidivist rent notices produced by the tenant have been issued by [Landlord 1]. Although [Landlord 2] may own the property, it is unequivocally [Landlord 1] who is stated as the landlord. There is no evidence that the parties to the agreement, namely [Landlord 1], and the tenant, did not intend to establish a landlord / tenant relationship.
Even though the first notice was invalidated due to its failure to allow for the minimum 90 days, it was nevertheless issued by the landlord, [Landlord 1]. The second notice, while allowing for more than 90 days, was however issued by [Landlord 2], who having taken legal advice, believed that they were the landlord. This was incorrect.
As per Section 51(4), a notice shall not be invalid for any failure to strictly comply with the requirements in subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a date or expiry of a certain period is clearly stated, and that any non-compliance is not such as to mislead or affect unjustly the interests of the recipient. In my view, a fundamental requirement of any notice is that it originates from the landlord, agent of the landlord, or others defined in section 2(1). Non-compliance concerning the identity of the issuer, someone legally authorised to do so, cannot be rectified by section 51(3).
In conclusion the notice issued on 17 April 2023, was invalid for form because it did not allow for a minimum of 90 days. Similarly, the second notice issued on 20 April 2023 was also invalid because it was not issued by the landlord or the landlord’s agent.
Moving on to the second part of the claim, that both notices were issued with knowledge that the landlord was not entitled to do so.
To provide tenants with a greater security of tenure, section 51 of the Act was amended on 11 February 2021, removing the ability of a landlord to issue 90-day notices to terminate periodic tenancies without cause. The amendments apply to periodic tenancy agreements entered before or after the commencement date.
Section 51(2) of the Act now provides: (2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a)the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition: or (b)the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession; or (c)the landlord is not the owner of the premises and the landlord’s interest in the premises is due to end; or (d)the landlord or owner has acquired the premises to facilitate the use of nearby land for a business activity and— (i)that fact is clearly stated in the tenancy agreement; and (ii)the premises are required to be vacant of residential tenants to facilitate that use; or (e)the premises are to be converted into commercial premises for at least 90 days by the landlord or owner; or (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date: or (g)the premises are to be demolished and the demolition is to begin, or material steps towards it are to be taken, within 90 days after the termination date. (2A)In subsection (2)(f) and (g), taking a material step means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step.
Under Section 60AA of the Act, a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing at the time of giving the notice or making an application they are not entitled to do so.
Breaching this section of the Act without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00.
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 primary issue centres around whether the landlord had grounds under section 51(2)(f). If not, then whether they knew they did not have grounds but nevertheless proceeded to issue or purported to issue a notice based on those grounds. The reference to “purport” emphasises that the provision in section 60AA, unlike those involving retaliatory notices under section 54(1), can apply to valid and invalid notices.
On 17 April 2023, the landlord visited the property to personally serve the tenant with a notice terminating the tenancy. The notice is in a standard format and references grounds in section 51(2)(f). Unbeknownst to the landlord, the exchange between the landlord and tenant was captured on CCTV and recorded audibly. A transcript has been produced. In addition to communicating an intent to undertake renovations the landlord also raised concerns about the conduct of the tenant, the utilisation of some of the chattels, and payment of the rent.
An objection has been raised about this covert recording of a conversation between the parties.
Pursuant to section 97(4) of the Act, the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether the same would be admissible in a court of law.
In He v Bai, DC Waitakere, CIV-2013-090-455, 23 October 2013, the District Court held that a covert recording was relevant and admissible. The Court said: [20] The right of silence preserved by s 23 of the New Zealand Bill of Rights Act 1990 applies to protect a person accused of criminal conduct from self incriminating [sic]. Even in criminal cases Courts have been willing to admit covertly recorded statements if voluntarily given. Accordingly, there is no blanket ban even in that jurisdiction especially in those cases where the statements are not made to a person in authority such as a police officer ... [21] Accordingly the evidence of the recording itself was in my view directly relevant for a point in issue in the case and did not require the consent or even the knowledge of Ms Bai as a pre-condition to its admissibility. ...
The overriding principle is one of fairness to both parties. Where a recording of a conversation is made without the knowledge of the other party, this is a factor which can be considered in determining the weight given to the evidence.
The tenant states that the landlord has refused to provide specific details about the extent of any work planned. As a result, the tenant questions the landlord’s veracity. The landlord states that their partner is dealing with serious health issues, and that they have expressed a desire to complete renovations on the property, and then sell.
The tenant has produced promotional material of the property for sale in 2021. The tenant contends that the property, which features two bedrooms and two bathrooms, is already “immaculate”, and they fail to perceive any necessity for extensive renovations. The landlord stresses the material was provided for promotional purposes, and that the property is at least 25 years old and requires modernisation if it is to reach its sale potential. They also claim that there is water damage in the kitchen, which is denied by the tenant.
The landlord states they plan to modernise the inside and paint the outside of the property but admit uncertainty as to the scope of any work, which they state can be fully determined when they have possession of the property.
The landlord states they have previous experience renovating several other properties and did not see the need to prepare a scope of work in advance. The tenant submits that without more a detailed explanation it is not possible to determine whether the work could not be completed with the tenant in occupation. The tenant is a roofer and states that in their experience that painting the outside, and even the inside, of any house would seldom require the occupant to move out. The landlord has candidly stated that based on their prior experience with the tenant they anticipate challenges in communication.
The provision in section 51(2)(f) is conjunctive. For the threshold to be met, the planned works must be extensive and not reasonably practicable with the tenant in residence. After hearing from both parties and reviewing the evidence provided, while I acknowledge the landlord’s intention to conduct some form of remedial / renovation work, I cannot be satisfied that it is extensive or determine that it requires the tenant vacating the property.
The onus of proving the claim that the landlord issued or purported to issue the notice knowing that they did not have grounds rests with the tenant. The mental state of “knowledge” is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court, dealing with knowledge in a criminal context, held that knowledge meant “knowing or believing in a state of affairs”.
Although the Tribunal has conducted an objective assessment and determined, based on the evidence, that the planned works were not necessarily extensive and to the extent that completing them with the tenant in residence would not be reasonably practicable, such a finding does not automatically result in a conclusion that the landlord knew that they did not have sufficient grounds.
While the tenant has cited irrelevant reasons for issuing a 90-day notice, I am satisfied that the primary purpose, as stated in the notice, was to undertake remedial or renovation work, which the landlord subjectively believed would be extensive. Breach of right to quiet enjoyment
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.
The tenant has referred to several occasions in which they feel that the conduct of the landlord breached their right to reasonable peace, comfort, and privacy. These include incidents related to requests they cover furniture provided as a chattel, maintaining the lawns and gardens, an unannounced visit during a BBQ, and an incident involves chairs, also provided as chattels.
Concerning the lawns, the tenant states that the landlord regularly visited the property to mow the lawns and tend to the gardens unannounced without their agreement, and that when they did so, they would “look through the windows”. The tenant states this occurred at least fortnightly and often on Saturdays. The landlord was not challenged about this at the time.
The landlord denies the breach and states that there was an ancillary agreement that the landlord would tend to the lawns and garden, which the tenant accepted. Although the frequency was not discussed, the landlord denies visiting on a fortnightly basis and never on a weekend, as they were aware that the tenant worked weekdays, and that weekends would not be appropriate. The landlord denies looking through the window.
The tenant is unable to provide specific dates and times, and has stated, candidly, that they are “not too good on dates and times”. This is what is often referred to as a tenant said versus landlord said situation. There is no corroborating evidence. The onus is on the tenant to prove the claim. In this case there is insufficient on which to be satisfied that the landlords conduct concerning the lawns and gardens has amounted to an unreasonable interference.
Regarding the other matters raised, I am, however, satisfied that there has been an interference. One Saturday afternoon while the tenant was hosting a family BBQ the landlord arrived at the property, made their way to the rear of the property, and asked the tenant if they could discuss matters relating to the tenancy. Although the tenant was surprised, and slightly embarrassed, they cooperated.
On another occasion the tenant states they were inside lying on the couch, provided as a chattel, when the landlord turned up unannounced and insisted that the tenant use covers on the furniture.
On another occasion the tenant states that they were sitting on chairs outside, chattels, when they received a call from the landlord stating that the chairs concerned were not meant for outside use. The landlord does not dispute these incidents.
The Tribunal has also heard evidence concerning visits or calls made by the landlord to comment on parking arrangements at the property, drawing the curtains to protect against sun damage, and about mail in the tenant’s mailbox. The landlord has accepted each of these stating that they felt obligated to the neighbours to ensure that the tenant’s visitors did not park on the footpath, and that the mail concerned was a census form which as the owner of the property, they felt obligated to bring to the tenant’s notice. The tenant states that these incidents occurred over a relatively short period of time an only ceased when their lawyer wrote to the landlord about the matter on or about April 2023.
Having heard from the parties and considered each of the incidents amounting to an interference and considering the relatively short period of time over which they occurred (February 2023 – April 2023), I am satisfied that the landlord’s conduct has amounted to harassment.
Section 109 (3) of the Act provides that 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.
The landlord states that they live nearby. In my view, this, along with their potentially not fully appreciating the fundamental hallmarks of the residential tenancy agreement they had entered, such as exclusive possession and quiet enjoyment, has been a contributing factor in the breach.
The Act provides mechanisms by which the parties can share their concerns about the use of the property, such as notices and inspections. Regardless of well-meaning intentions, repeated visits to the property unannounced were not acceptable, and, in my view, amounted to an interference with the tenant’s reasonable peace, comfort and privacy.
The tenant did not raise any objection with the landlord at the material time and did so for the first time in or around April 2023, after which I am informed that the conduct ceased. While short of causing substantial emotional distress, I accept that conduct was persistent and caused an annoyance. Taking these factors into account I award the tenant exemplary damages of $600.00. Costs
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
Both parties seek name suppression. The tenant has been wholly successful and pursuant to section 95A of the Act is granted name suppression.
Section 95A (4) of the Act also 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.
Although the landlord has not been substantially successful, there are reasons relating to the physical and emotional health of the landlord’s partner which in my view justify suppression

Tenancy Tribunal case 4614430 — Healthy homes

At a glance

Tenancy Tribunal case 4614430 — Healthy homes

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions