What was Tenancy Tribunal case 4614709 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 2B, 22 High

How much money was awarded in case 4614709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4614709?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4614709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10589171-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4614709 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 2B, 22 High

How much money was awarded in case 4614709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4614709?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4614709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10589171-Tribunal_Order_Redacted.pdf.

Unit/Flat 2B, 22 High Street, Auckland Central, Auckland Tenancy Tribunal Case 4614709 — Rent arrears

Order

The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 2B, 22 High Street, Auckland Central, Auckland 1010 is reduced and ended on 26 June 2023.
The landlord’s application for rent arrears and compensation for changing locks and a trade call out fee is dismissed.
The tenant’s application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing which was held by video conference as the tenant no longer lives in New Zealand. The first hearing in this matter was held on 13 February 2024 but was adjourned part heard to allow the parties to file additional evidence. The hearing then resumed on 19 June 2024.
Both parties have filed applications in the Tribunal.
The landlord claims: a. Rent arrears of $1,333.00; and b. Compensation of $633.94.
The tenant claims: a. A reduction of the fixed term of the tenancy; b. Breach of Healthy Homes Standards; and c. Exemplary damages on the basis of harassment. Onus and evidence
The party bringing the claim bears the onus of proving their claim to the civil standard (on the balance of probabilities).
For the sake of brevity I have not referred to all of the evidence filed and given at the hearings of this matter but the parties can be assured that I have carefully reviewed and considered all of the evidence in reaching this decision. Background
The tenant, a young woman who had recently arrived in New Zealand, met with the property manager and director of the landlord, Samir Raju, to view the one- bedroom apartment located on High Street, Auckland Central.
The parties agreed to a six-month fixed term tenancy from 29 May 2023 to 29 November 2023 at a rental of $510 per week. However the tenant only lived at the property for four weeks before moving out.
The tenant says that there were a large amount of issues and defects at the property and that the property manager harassed her causing to feel distressed and unsafe. She gave notice on 6 June 2023 and left on 26 June 2023.
The landlord says that there were some issues at the property but that they were dealt with promptly, that the tenant changed the locks without permission and refused to allow a glazier to enter to repair a window needlessly causing a call out fee to be incurred. The landlord says that the tenant was not able to give notice because of the fixed term and so remains liable for rent until a new tenant was found. Landlord claims Rent
The landlord agrees that the tenant left on 26 June 2023 but says the tenancy did not end on that date. The landlord says that they looked for a new tenant as soon as possible but that the tenancy continued until a new tenant moved in. They seek $1,333 from the tenant for rent for the intervening period.
The tenant says that when she gave notice she told Mr Raju that the landlord could keep the bond which had not yet been lodged, which together with her initial deposit of $510 (which she paid in cash) amounted to four weeks rent. She said that she thought this had been agreed and this was to be the end of the matter.
However Mr Raju disputed that he had received $510 in cash from the tenant and said that he had in fact only received three weeks bond from her.
The tenant referred me to text correspondence with Mr Raju regarding the payment of $510 in cash. On 16 May 2023, the day after the agreement was signed, the tenant sent a text to Mr Raju stating “Good morning! Thank you. Let me know when you’ve sent over the agreement and receipt from yesterday”. Mr Raju replied a few minutes later saying “Will be done this afternoon to your email”. Then after various further follow up texts the tenant sent another text on 19 May 2023 to Mr Raju saying “Good afternoon, still have not received the documents this morning. The documents were promised Wednesday 16 th after we signed them and the deposit was given. I would appreciate if you could send them to me no later than today as I need to give notice in the place I am currently residing. If it is no longer happening, then let’s arrange a time Monday to return the $510. Thank you”.
At no stage in the text exchanges did Mr Raju dispute that a deposit had been paid and in fact he agreed to provide a receipt (but did not do so).
I consider that Mr Raju is mistaken in his recollection of events. I find that the tenant has paid four weeks of rent in total. The only difference between the parties therefore is duration of time for which rent is payable. Whether or not rent is owing will depend on the tenant’s claim for reduction of the fixed term, which I discuss below. Lock
The landlord said that the tenant changed the locks without permission. He said that the new tenant asked for the locks to be changed again because they were worried that the tenant might have a duplicate key and could come back at any stage. The landlord said that the tenant had replaced the lock with a cheap lock, rather than a more expensive lock appropriate for the age and character of the antique building. The landlord produced an estimate from Bison Property Services Ltd in the amount of $181.13 to replace the lock but no invoice for the work done.
The tenant said that she changed the lock because she lost her key, and that she only changed the barrel, which did not change the appearance of the lock. She said that she used a reputable locksmith and produced photos of the outside of the lock taken by friends in New Zealand In January 2024 showing that the same lock remained (with the name of the locksmith imprinted on the lock) together with a letter from the locksmith confirming that they had not changed the lock again.
The landlord has not proven on the balance of probabilities that they replaced the lock after the tenant left the property. The landlord’s claim for compensation for the lock is therefore dismissed. Glazing invoice
The landlord says that they gave the tenant notice that a glazier would attend to repair a window but that the tenant would not answer calls and that the lock had been changed. The landlord said that they called the tenant multiple times but the tenant did not answer, that the lock had been changed, and that they were charged a call out fee of $633.94 for waiting time (as proved by invoice).
The tenant says that there was no need for a glazier to attend. She said that she received multiple calls from Mr Raju on the Saturday morning, while she was no home, and was so alarmed that she approached the Police and made a report.
I find that, on the basis of my findings below that the tenant is not responsible for the glazing call out fee. Tenant claims Breach of Healthy Homes standards
The tenant included a claim for breach of Healthy Homes Standards in her application but the Healthy Homes Standards did not yet apply to this tenancy (but would have applied 90 days after the date of the tenancy).
The issues raised by the tenant in my view are more properly considered under Section 45(1)(b) (the landlord’s obligation to provide the property in clean and properly maintained state). However the tenant confirmed at the hearing that she did not seek any compensation for the issues raised but that they instead formed the basis of her application to reduce the fixed term. I therefore consider all of the issues under that heading. Reduction of fixed term
The tenant has applied for reduction of the fixed-term tenancy due to end on 29 November 2023.
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances; b. the change was unforeseen; c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced; and d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
The tenant sought to rely on three grounds to end the fixed term early as amounting to a change in circumstances, being the condition of the property, difficulties of access, and harassment by Mr Raju.
The tenant says that the property wasn’t clean when she moved in, although a cleaner did return to clean when she raised the issue, there were rubbish bags left behind, there was no fridge initially but when installed it started leaking, the washing machine was dirty and unusable, the toilet was leaking and she could not use it for two days while it was fixed (and had to use a public toilet during that time), and that here were dust mites.
Mr Raju accepted that there were some issues but said that they were dealt with promptly and that the landlord had addressed some of the issues and was attending to others.
The tenant said that the apartment was on the second floor and although there is a lift, after 7pm the lift does not come down to the ground floor and so she had to walk up the first flight of stairs to get the lift to her apartment. She said that she has a disability and walks with a cane and would never have agreed to rent the apartment had she known about the lift. She said that she asked for a lift key but was not given one.
Mr Raju said that the tenant had ample opportunity to view the property before moving and never raised access as an issue.
The tenant made it clear at the hearing that the most concerning issue, that led to her leaving the property, was the fact that she did not feel safe at the property.
The tenant explained that the day after she moved in she contacted Mr Raju to explain that rubbish had been left behind. She said that Mr Raju then arranged to come over to collect the rubbish in the evening as it was difficult to park near the apartment during the day, and that he asked her out for a drink. She said that she felt uncomfortable about meeting him in the evening but agreed with the intention that she could cancel the arrangement once he had collected the rubbish.
The tenant then said the following evening, 31 May 2023, Mr Raju rang her twice, after 8pm, while driving and sounded very intoxicated and was slurring his words. He said that he was on his way to the property. The tenant’s phone records show two calls from Mr Raju that evening, one at 8.33pm for 10 minutes and one at 8.47pm for 12 minutes.
Immediately after the phone calls the tenant sent Mr Raju a text (produced in evidence) at 9.02 pm where she stated: “You are very intoxicated. You shouldn’t need (sic) driving. Please get home safely. Good night.” Mr Raju responded almost immediately stating “Forget it [tenant’s name]”. He then sent a further text at 9.42pm stating “But I was really thinking of taking u out, but this is last time [tenant’s name]. Have a chill pill”.
The tenant said that she felt scared as there were no internal locks or way to prevent entry and she was unable to sleep as she knew that Mr Raju had a key to the property.
The tenant contacted Tenancy Services the next day who advised her to issue a 14 day notice in respect of the cleaning/rubbish/maintenance issues and to see whether there was another person she could deal with besides Mr Raju.
The tenant then prepared an email and 14 day notice as advised by Tenancy Services and sent these to Mr Raju on 2 June 2023. A copy of the email was produced in evidence.
In the meantime the tenant lost her key, but didn’t want to contact Mr Raju and so she arranged to change the lock. However at some stage it became apparent that Mr Raju was aware that she had changed the lock, and the tenant became concerned that he had tried to access her property. He asked her for a key so that she could access the property but she declined as she was concerned for her safety.
The tenant then said on 15 June 2023 she received a call from Mr Raju which she ignored but then he rang repeatedly. She felt scared and approached a police officer who told her to switch her phone off and took her to the police station to file a report. The tenant produced a copy of her phone log which shows calls from Mr Raju at 8.34am, 9.15am, 11.37am (two calls), 11.38am and
39am
The tenant said that she no longer felt safe and no longer wanted to stay at the property. She said that she was unsure of the process to follow to end the tenancy but gave notice the following day and left on 26 June 2023. She left the key in the letterbox.
Mr Raju explained that he simply asked the tenant out for a drink as she said that she did not know anybody in New Zealand and he wanted to be friendly. He said that he had been at a function before arriving at the property but said that he had not been drinking and left without going up to the property.
He said that when he made multiple calls to the tenant on the morning of 15 June 2023 it was simply because a glazier had arrived to repair a crack in the glass and could not gain access and he was trying to get hold of her. He referred me to text messages sent by him to the tenant on 13 and 14 June 2023 confirming that the broken glass would be replaced at 9am on 15 June 2023. He said that he explained the situation to the police who then confirmed that they would not investigate the matter further.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
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. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness. Analysis
My impression is that there were a number of cleaning/maintenance issues that should have been dealt with before the tenant moved in but they are not of sufficient seriousness to amount to a “change of circumstances” by themselves. They are more in the order of issues that are ordinarily be dealt with by the issuing of work orders and/or compensation to the tenant for lack of amenity.
The evidence was not sufficiently clear on the access issue. It did not appear that the tenant had raised access issues with the landlord until the tenancy had begun.
Having heard from the tenant it is clear that the issue that ultimately led to her leaving the property at short notice was her feeling that she was being harassed by Mr Raju.
Having carefully weighed the evidence I accept that Mr Raju did not intend to upset or harass the tenant and that an award of exemplary damages is not appropriate. However his decision to invite the tenant out for a drink was most unwise, as he accepted at the hearing, and ultimately led to the tenant feeling unsafe and harassed regardless of his intentions.
The tenant was a young single female who was new to New Zealand and knew very few people. She was particularly vulnerable.
Property Managers hold a position of trust. They will inevitably know that a tenant is living alone, their usual hours of work and will hold a key to the property. They must take absolute care to ensure that they do not cross professional boundaries.
Regrettably, Mr Raju crossed those boundaries when he asked the tenant to go out for a drink and called her late in the evening. Unsurprisingly his later contact was interpreted by the tenant in the context of his earlier behaviour.
I accept that by contacting the tenant on 15 May 2023 while the glazier was waiting outside the property Mr Raju was genuinely attempting to avoid a call out fee for glazing work. However I also accept that the tenant was genuinely fearful and that the repeated calls were distressing to her.
Mr Raju is the sole director of the landlord and so the tenant was not even able to contact another person at his office to raise concerns. There is no professional body overseeing the conduct of Property Managers that the tenant could approach.
In the circumstances I consider that there was an unforeseen change in the tenant’s circumstances. She no longer felt safe at the property or dealing with Mr Raju. She would have continued to feel unsafe if the tenancy had continued, which I consider amounts to severe hardship.
The landlord would suffer hardship if the term was reduced (loss of rent), but I consider that the tenant’s hardship would be greater than the landlord’s hardship.
The fixed term tenancy is reduced. I consider that it is appropriate to reduce the fixed term to the date the tenant left (having given two weeks’ notice) to 26 June 2023. I find that the tenant had already paid four weeks of rent (three weeks originally as bond) and so no further rent is owing.
I do not consider that it is appropriate that the tenant compensate the landlord for the glazier’s call out fee. It was also unreasonable to expect her to answer Mr Raju’s multiple calls in the circumstances. Name suppression and filing fee
Neither party has been wholly or substantially successful so as to justify the reimbursement of the filing fee.
However I consider that the tenant has successful defended the landlord’s claim and has been successful in reducing the fixed term of the tenancy, and in the circumstances she is entitled to an order for name suppression pursuant to Section 95A RTA.

Tenancy Tribunal case 4614709 — Rent arrears at Unit/Flat 2B, 22 High Street, Auckland Central, Auckland

Tenancy Tribunal case 4614709 — Rent arrears at Unit/Flat 2B, 22 High Street, Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions