What was Tenancy Tribunal case 4646112 about?

The tribunal order states: Aimee Elizabeth Herd must pay Graeme Cornwell $1,717.80 immediately,

How much money was awarded in case 4646112?

Compensation: Loss Of Amenity - Deck: $500.00 awarded to tenant; Previous Order Application 4611094 D…: $3,117.80 awarded to landlord

What type of tenancy dispute was case 4646112?

The dispute type was not classified.

Where can I read the official tribunal order for case 4646112?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10375563-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4646112 about?

The tribunal order states: Aimee Elizabeth Herd must pay Graeme Cornwell $1,717.80 immediately,

How much money was awarded in case 4646112?

Compensation: Loss Of Amenity - Deck: $500.00 awarded to tenant; Previous Order Application 4611094 D…: $3,117.80 awarded to landlord

What type of tenancy dispute was case 4646112?

The dispute type was not classified.

Where can I read the official tribunal order for case 4646112?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10375563-Tenancy_Tribunal_Order.pdf.

28 Arrow Street, Washington Valley, Nelson 7010 Tenancy Tribunal Case 4646112 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4646112 — net $1,717.80 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4611094 dated 04/04/2024	$3,117.80		Previous order application 4611094 dated 04/04/2024
Compensation: loss of amenity - deck		$500.00	loss of amenity - deck
Total award	$3,117.80	$500.00
Net award	$1,717.80
Total payable by Tenant to Landlord	$1,717.80

Both parties attended the hearing. The agent for the landlord also attended. The landlord joined by preapproved teleconference.

On 4 April 2024 the Tribunal made an order relating to this tenancy, for rent arrears and rubbish removal. The previous order is incorporated into this order for enforcement purposes. This tenant application was adjourned at that time to be heard separately, after a number of adjournments.

The tenant sought compensation of $6,425.00, citing “work done on the property, emotional reparation for harassment, loss of fridge and food, portion of rent back for months of living with an unsafe deck that was falling in with a family.”

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.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

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. Failure to maintain

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

The tenants claim that the landlord failed to remedy a failure in the deck. The deck was the main outdoor living area.

A number of messages between the parties were exchanged and provided. A number relating to the deck are copied below: 8/26/22, 1:34 PM The tenant sent, “Hard work paying off, the whole property has no more slime, deck has finally dried, looking nice - might need to mark the no go spots lol” The tenant sent, “The deck is lethal and cant wait until January, you need to send someone up”. 10/15/22, Cannot fix the deck till January. Stay off the areas which you think are soft but I did go over it and fixed those areas which needed fixing last January. The deck will dry out. It’s only 2.5 months at most till I’m there to fix it. 11/24/22, 8:23 PM The tenant sent, “You sent Hey so the deck is so bad now it’s not safe anywhere I feel a bit grated at paying full rent while it’s in such dis repair as we can’t sit outside anywhere, I can’t have people over...” Landlord replies, “I am coming in January- 4 weeks from today to have a look at the deck and do windows”. And the next day confirms, “The deck will be fixed when I come down.”

There were other claims regarding failures to maintain but none of these are supported evidentially as being raised by the tenant and not addressed, in a timely manner, by the landlord. Quiet enjoyment

The tenant claims the landlord has harassed them.

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.

The tenant had a difficult December 2023 personally. The communication prior to the landlord moving in for the month, as planned, evidenced that. The landlord offered the tenant the option to leave the fixed-term tenancy at the time but that was not taken up. The impact on quiet enjoyment was primarily during the landlord’s stay and work undertaken. The tenant sought “emotional reparations” above the compensation already agreed; being four weeks rent free. Due to the issues between the two after his stay, the landlord engaged a professional property manager for the reminder of the tenancy. No issues were cited by the tenant from during that tenure. Compensation

It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.

Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party due to a failure by the other party.

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

I find it proven that the landlord failed to act promptly when advised that the deck was dangerous and unusable. It was not acceptable to defer maintenance until the new year when the deck was eventually replaced. Based on the date of advice by the tenant to the date of remedy by the landlord I have assumed a ten-week period of loss of amenity and a rent rebate of $50.00 per week. That determines a compensation sum of $500.00 and this is awarded. This sum allows for the impact on the tenant’s quiet enjoyment as well as loss of amenity.

There are other aspects of this tenancy operation that were unusual. The tenant had a rent-free period prior to the tenancy commencing. The landlord claims the weekly rent was set at a $100 discount to what he could have achieved. Given the prior occupancy arrangement (the landlord lived there with other occupants paying him) I cannot assess the validity of that claim.

I make no other compensation orders regarding quiet enjoyment. That does not mean there were no impacts on the tenant quiet enjoyment, rather such impacts, where the landlord was responsible, have already been compensated by the rent-free period, or not proven as of such an impact or landlord responsibility further orders should be made. In particular, the fridge moving and subsequent failure. Application filing fee

I make no order regarding the application filing fee. The tenant has had some success but the landlord’s order did not return his filing fee and it is appropriate to balance that here. Each party carries their own filing cost.

Reasons

Claims and awards in Tenancy Tribunal application 4646112 — net $1,717.80 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4611094 dated 04/04/2024	$3,117.80		Previous order application 4611094 dated 04/04/2024
Compensation: loss of amenity - deck		$500.00	loss of amenity - deck
Total award	$3,117.80	$500.00
Net award	$1,717.80
Total payable by Tenant to Landlord	$1,717.80

Both parties attended the hearing. The agent for the landlord also attended. The landlord joined by preapproved teleconference.

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. Failure to maintain

The tenants claim that the landlord failed to remedy a failure in the deck. The deck was the main outdoor living area.

The tenant claims the landlord has harassed them.

Tenancy Tribunal case 4646112 — Tenancy dispute at 28 Arrow Street, Washington Valley, Nelson 7010

At a glance

Tenancy Tribunal case 4646112 — Tenancy dispute at 28 Arrow Street, Washington Valley, Nelson 7010

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