What was Tenancy Tribunal case 4629532 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,080.44 immediately, calculated as

How much money was awarded in case 4629532?

Property Damage: $60.00 awarded to tenant; Compensation: Quiet enjoyment/Attemp…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4629532?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4629532?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9741985-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4629532 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $2,080.44 immediately, calculated as

How much money was awarded in case 4629532?

Property Damage: $60.00 awarded to tenant; Compensation: Quiet enjoyment/Attemp…: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4629532?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4629532?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9741985-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4629532 — Property damage

Claims and awards in Tenancy Tribunal application 4629532 — net $2,080.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Lock repair	$60.00	Lock repair
Compensation: Quiet enjoyment/Attempt to terminate without grounds	$2,000.00	Quiet enjoyment/Attempt to terminate without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,080.44
Total payable by Landlord to Tenant	$2,080.44

Claims and awards in Tenancy Tribunal application 4629532 — net $2,080.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Lock repair	$60.00	Lock repair
Compensation: Quiet enjoyment/Attempt to terminate without grounds	$2,000.00	Quiet enjoyment/Attempt to terminate without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,080.44
Total payable by Landlord to Tenant	$2,080.44

Order

[The landlord/s] must pay [The tenant/s] $2,080.44 immediately, calculated as shown in table below. The sum may be offset by the tenant against rent payable.

Reasons

Both parties attended the hearing. [The landlord’s representative 1] represented [Landlord 1] as her counsel, [Landlord 2] joined by telephone.
[The tenant/s] claims the landlord has harassed her and also gave improper notice to terminate. She sought compensation for costs incurred fixing a broken lock. Compensation of $800.00 and exemplary damages were sought.
A telephone case conference was convened on Friday, 8 September 2023. The applicant was present. [Landlord 2] joined by teleconference. [The landlord’s representative 1] represented [Landlord 1] as her counsel. This was granted per s 93(3) Residential Tenancies Act 1986 (RTA). That conference confirmed both landlords should be named in this application. [Landlord 2] was added as a second respondent.
The matter was referred to mediation with the agreement of the parties, but no mediated agreement was reached. It was therefore set down for this hearing. Background
This tenancy commenced on 14 November 2022. The premises, referred to as “the Cottage” in the tenancy agreement, is within a larger property that was also the home of the landlords and other tenancies.
The personal relationship between the landlords has ended. A prior protection order was reactivated by [Landlord 1], effectively barring [Landlord 2] from the property from late March 2023. Both landlords engaged legal counsel. The impact of that dispute extended into this tenancy and the tenant.
Given the constraints of the protection order, the tenant looked to [Landlord 1] as the landlord to engage with as required for tenancy matters. At one stage, [Landlord 1] told the tenant via a message on 25 June 2023, “your landlord is [Landlord 2], not me”, while later she asserted her landlord’s right to attempt to unilaterally terminate the tenancy.
On 26 June 2023 [Landlord 1] was served by [The tenant/s] with a letter and separate notice to remedy a broken lock that meant her premises could not be secured.
Things came to a head when the tenant was served a notice to quit on or around 13 July 2023. This notice was drafted and served on the tenant by [The landlord’s representative 1], on the instruction of [Landlord 1].
[The tenant/s] promptly lodged this application in response to that, and earlier issues.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where applicable. Quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 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 section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in this case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined 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.”
From these definitions it seems that 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 Palmerston North TT 12/87, 16 March 1987 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.”
[The tenant/s] complained of [Landlord 1]’s harassment on 8 April 2023 and she went to the police station about it. She claims she was advised by the police officer to stay on the side of [Landlord 1].
Messages between [The tenant/s] and [Landlord 1] were exchanged during this period and provided to the Tribunal by [The tenant/s]. It is not possible to ascertain the sequence of messages given a number of them are undated.
In her application, [The tenant/s] seeks an order for “the landlady to fulfill her duties and to leave me out of her war she declared on her husband and retracting her lies about me from her sworn affidavit against her husband.”
Having reviewed the messaging there is clearly an overlap the relationship dispute between the landlords and how the tenancy operated from April 2023. I also heard of other activities at the property that at times involved police and surveillance. These disturbed the tenant and her daughter, but I do not find any such activities to be a responsibility of the landlords.
There were impacts on tenant quiet enjoyment due to the breakdown in the landlords’ relationship and a subsequent impact on the operation of the tenancy. [The tenant/s] provided a written impact statement which outlined her significant distress. She stated she feels dragged into a personal vendetta [Landlord 1] has against [Landlord 2] and sought revised compensation of $15,000 from her.
Last year, in Cavanagh v Kāinga Ora [2022] NZDC 7003 the District Court said the Tribunal should not be too constrained by the application. Although the tenant only applied for exemplary damage for related breaches, I have considered whether to award compensation. Section 85 RTA requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
[The tenant/s] clearly has been disadvantaged by the change in landlord circumstances. She has become embroiled in that dispute 1 , as well as experiencing some impact from other, unrelated activities at or near the property. These are all unfortunate, but I do not consider these can all be attributed to landlord failings in this residential tenancy. I have also considered how she engaged with [Landlord 1] and [The landlord’s representative 1] during 1 The tenant sought an order for the landlady to “leave me out of her war she declared on her husband and retracting her lies about me from her sworn affidavit against her husband”. this period. An alternate approach may have mitigated some of the impacts experienced.
I do find that the tenant is entitled to compensation for the emotional harm she suffered as a result of the landlord’s actions in this case; she suffered a significant loss of enjoyment of her tenancy due to worry and stress.
I have carefully reviewed the evidence and submissions and determine an award of $2000.00 is appropriate for the adverse impact on the tenant’s quiet enjoyment due to the failures of the landlord since April 2023. Notice to terminate
[The tenant/s] claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
It is not unusual where two named landlords cease to operate jointly that some confusion arises over responsibilities.
The usual position where there are joint landlords or tenants, one of the joint tenants or landlords can give a unilateral notice ending the lease, and that notice becomes binding on their co-landlord or tenant.
In this instance, steps to terminate the tenancy were taken by [Landlord 1]. Such termination was not supported by [Landlord 2].
This tenancy was formed correctly as a residential tenancy via a residential tenancy agreement signed by both landlords.
[The landlord’s representative 1] appeared unaware of the existence of this tenancy agreement at the time he drafted and served the notice to quit (below). [image redacted]
When asked what prior discussion had taken place with [Landlord 1] regarding the occupancy status of [The tenant/s], he stated he had sought to confirm the status but he was advised there was no tenancy agreement and the notice as drafted was appropriate.
I asked [The tenant/s] if she called [The landlord’s representative 1] when she received the notice, as invited to do so. She did not, lodging this application instead.
[Landlord 1] did not appear at the hearing and I was unable to question her regarding her intention. What is apparent is that she did sign the written residential tenancy agreement and was aware of the rent payment arrangements (she later attempted to instruct the tenant to pay rent into a different bank account). Further indications of [Landlord 1]’s awareness of the agreement and terms was provided when she referenced a provision regarding the bond treatment in a message to the tenant (below).
Section 60AA provides that a landlord commits an unlawful act if they give notice to terminate the tenancy knowing they are not entitled to do so. I consider the section still applies where such a notice is served on behalf of the landlord.
When a party to a tenancy agreement commits an unlawful act, the Tribunal may award exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
In this case, by a fine margin, I do not find that [Landlord 1] acted with intent. In other words, she did not turn her mind to whether she was terminating the tenancy in such a way she was not entitled to, and then deliberately set about to do so. There is confusion evident in a number of the messages presented and I have also considered possible language barriers. She had legal support and some reliance on such advice would seem reasonable. If the messages produced by the tenant asserting the tenancy existed were seen by [The landlord’s representative 1] prior to the notice it is difficult to comprehend why he proceeded as he did.
There was an undated or signed affidavit by [The tenant/s] proved in relation to the relationship dispute. That contained messages between her and [Landlord 1] that should have raised some concern regarding the approach to termination but given its draft status I cannot determine any applicability within the relevant timeframe here.
I consider that [Landlord 1] can be considered negligent, but negligence is not sufficient to establish a claim for exemplary damages.
In reaching this conclusion, I have been mindful of two other current tenancies at the property. One other is within jurisdiction but relies on a verbal agreement with [Landlord 2]. The second was struck out by me for lack of jurisdiction as that was with the mother of [Landlord 2]. That tenancy was also verbal until the relationship breakdown when [Landlord 2] put a written agreement in place. Both of those tenancies were established by [Landlord 2] primarily.
In short, the different “flavours” of agreements for occupancy at this property make for a confused situation, that, on balance, tips my determination away from intentional action.
I therefore dismiss the tenant’s application for exemplary damages. Was the attempt to terminate the tenancy valid? If not, should the Tribunal award the tenant compensation?
I find that the landlord was not entitled to serve the notice on or around 13 July 2023. While an unlawful act that should attract exemplary damages was not established, the notice triggered further impacts on the tenant and her daughter that should be addressed via compensation.
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as inconvenience, a loss of enjoyment of the tenancy, stress, and anxiety.
In Birch the District Court confirmed that the Tribunal must take into account the following factors when deciding whether to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
[The tenant/s] sought $800.00 in compensation in her application but that appears to pertain to the lock issue. I do not consider that amount establishes a ceiling for any total compensation.
[The tenant/s] sought awards against both [Landlord 1] and [The landlord’s representative 1]. I explained at the hearing that [The landlord’s representative 1] is not a party to the application and no direct orders against him for his actions would be made. She stated she has made a complaint to the Law Society regarding his behaviour and that dispute process seems the most appropriate recourse.
For reasons that remain unclear, beyond a neighbour being a policeman, there was police activity at or around the property. This involved an initial visit to the tenant requesting her assistance where information was sought by the police. There is no indication this meeting was less than amicable. [The tenant/s] has also made complaints to the police regarding their actions. I was sorry to read her statement that “both of us (her and her daughter) experience anxieties every time we see a police officer or drive past a police car”. This is unfortunate but I cannot correlate such reaction to just the police interaction regarding this tenancy.
The notice of 13 July 2023 was served and followed up on with a trespass notice, drafted and signed by [The landlord’s representative 1], and dated 2 August 2023. It was served on 3 August 2023 with the assistance of police. Given the tenant had already lodged an application to this Tribunal, it is curious why the police became involved as it is the more usual practice in similar situations for the police to advise it a civil matter that should be resolved via the Tenancy Tribunal. I am unaware what information the police had regarding the background and their subsequent involvement in the termination attempt.
Terminating a tenancy is a decision that has real consequences for a tenant and should always be a decision made with careful consideration. Here, the landlord acted negligently in the process, and while the tenancy continues, the tenant was unfairly and adversely impacted.
A later 63-day notice to terminate was served but I have no copy of that. It was never enforced as [Landlord 2] was subsequently granted an occupation order that enable him to return to the property to prepare it for sale and this tenancy continues.
The landlord’s negligence in attempting to end the tenancy as she did is factored into the above compensation order regarding quiet enjoyment. Locks
[The tenant/s] needed the lock repaired. She first notified [Landlord 1] on 24 June 2023. In a second text message on 25 June 2023 [The tenant/s] states: [image redacted]
A further letter and notice to remedy was served on [Landlord 1] on 26 June 2023.
As she was unable to secure the premises [The tenant/s] arranged for a repair herself as she had indicated she would do.
An invoice for $60.00 was produced in support of her claim for compensation. It is awarded.
Section 46(1) RTA requires the landlord provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure. A failure to comply, without reasonable excuse, is an unlawful act (s 46(3)).
The timeframe was such that the tenant arranged the repair (as she said she would), that being a reasonable excuse for any failure to comply. This repair was a landlord responsibility and cost and the compensation of $60.00 is ordered. I note the instruction by [Landlord 1] for [The tenant/s] to deduct the cost from the rent so this compensation could have been obtained before now. [image redacted]
Given the tenant took it upon herself to have the lock repaired, and the landlord approved this with advice to deduct the cost from rent, I do not find grounds for any further compensation. Application filing fee
Because [The tenant/s] has substantially succeeded with the application I must reimburse the filing fee. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant requested suppression in her application. As she has been substantially successful, name suppression is ordered.
Much of this dispute stems from the relationship breakdown between the landlords. Resolution of that is still pending in a jurisdiction where orders are not published, therefore I consider it appropriate to also suppress the landlord names in this instance. Rent payable
The application was initially made against [Landlord 1] only. [Landlord 2]was later joined to the application as the second landlord.
I consider [Landlord 1] is the landlord most at fault and responsible for the majority of the orders in this decision. I have made the order against both landlords as I am uncertain who received the rent during this time. Without accurate accounting of the rental income and any other related income or expense I leave both landlords named. Given the circumstances, it is appropriate the tenant can offset against rent payable. Normal rent resumes once the sum of rent offset equals the sum ordered, or the debt (or any remaining balance) is paid by the landlords. If the tenancy comes to an end before, any remaining balance is immediately payable.

Tenancy Tribunal case 4629532 — Property damage

At a glance

Tenancy Tribunal case 4629532 — Property damage

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