What was the outcome of Tenancy Tribunal case 4646689?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4646689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4646689?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4646689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9476085-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4646689?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4646689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4646689?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4646689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9476085-Tenancy_Tribunal_Order.pdf.

53 Montgomery Cr, Landsdowne, Masterton 5810 Tenancy Tribunal Case 4646689 — Harassment

Order

No suppression orders apply around publication of this decision.
All applications are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenant.
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
Both parties appeared at the hearing in Masterton on 29 September 2023.
The tenancy in this case is a tenancy of some years duration. It seems that in more recent time the relationship between the parties has broken down significantly. As I will discuss further below, the tenant states the issues arose around a damaged exterior door, and things have gone downhill from then.
On 27 September 2023 the landlord issued the tenant a notice terminating the tenancy on the grounds that the landlord intends undertaking significant work to the premises. That is not a matter that is before me and I will not discuss it further, other than to note the tenant advised at the hearing she is wanting to end the tenancy given the relationship breakdown.
The two matters before me are in relation to a damaged door frame (the landlords claim), and a breach of quiet enjoyment (the tenants claim).

RELEVANT LEGAL CONSIDERATIONS

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claim “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

LANDLORDS CLAIM

The only claim advanced by the landlord relates to damage to a door. I have considered the photographs, and they show what I will refer to as damage to the door, around the striker plate. The landlord considers the damage was caused when the door had been forced open, whereas the tenant disputes that to be the case, stating it is simply a wear and tear (maintenance) issue.
Mr Beaumont advised that he attended the house, and at the time of the inspection found that there had been damage to an exterior door, which meant it could not close. Mr Beaumont advised that he did a temporary repair, but given it was significant damage a builder was needed. Mr Beaumont advised that a police report was made for insurance purposes.
The landlords consider the damage was caused by forced entry, but the landlord does not know who caused the damage. The landlord advised that a clause of the tenancy agreement is that the tenant be liable for any damage to the premises.
The landlords are also concerned that the premises were not sufficiently secure, and the tenant was not doing anything about it.
In response, the tenant disputes that the door could not be locked, she says it could. The tenant says the door has been in that condition over a long period of time, as long as she could recall. The tenant consider it was a maintenance issue, and she states her house was not broken into during the tenancy as the landlord asserts.
In conclusion the landlord disputes that the door was not damaged from forced entry.
The landlord claims the tenant would not lock the door. The tenant disputes that is the case, stating that on the example given by the landlord she was at the neighbours.

ANALYSIS

Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Having considered the available evidence, I find the landlord has not proven that the damage to the door is not fair wear and tear (maintenance).
The photographs do not reflect what I could say is plainly evidence of the door being forced open. Perhaps they do, but they could also be consistent with wear occasioned to the door over a number of years, particularly given the age of the dwelling. I have no reason to prefer the opinion of the landlords that the door was forced, to the evidence of the tenant that the door has not been forced to her knowledge, and that the state of the door is long standing. The onus is on the landlord to prove that the damage is not fair wear and tear, and I consider the landlord has not proven that.
But if I were wrong in my assessment of cause, and the door had been forced, there is another insurmountable problem for the landlord. The tenant would only be liable for the damage if the evidence was that the tenant or someone on the premises with the tenants permission had forced the door – and there is no such evidence before me. If the door was damaged from a burglary or attempt, then the tenant would not be liable for that.
I record for completeness that the RTA prohibits a tenant from contracting out of the protections of the RTA, which means that the tenant cannot by law enter into an agreement that they would be liable for all damage caused during the tenancy. Again tenants can only be found liable for careless or intentional damage.
This claim has not been established, so it is dismissed.

TENANTS CLAIM

The tenant seeks exemplary damages for a breach of her quiet enjoyment of the tenancy.
The tenant states that the relationship with the landlord deteriorated over the door issues discussed above, and she found the relationship unsettling, not knowing if she would have her tenancy terminated. The tenant says this has caused her significant stress, and caused sleepless nights and needing time off work. The tenant says that from the door conflict, the previously good relationship with the landlord has changed.
I raised with the tenant that in order to get exemplary damages, I must be satisfied that the landlords have harassed the tenant. The tenant considered this was a case of harassment.
The tenant referred to the content of the emails.
The tenant also referred to a reinspection where the landlord has taken photographs of the inside of her house, including her bedroom and daughters bedroom, which breached her privacy. The tenant considers that the landlords notice for the reinspection only related to an inspection of the items which the landlord was critical about following the earlier inspection.
The tenant agrees that she did get the notice for the reinspection on 31 July, but she was not there because she had got the days mixed up. But the tenant says she was upset to have found that the landlord had taken the photographs.
The landlord disputes that there has been any breach of the tenants quite enjoyment.
The landlord states that they have a right to take photographs, and had been told by Tenancy Service that they should take photographs.

ANALYSIS

Section 38 of the RTA confirms that the tenant “shall be entitled to have quite enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
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 that 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.”
In this case I am not persuaded that there is evidence to show that the landlord had intended to harass the tenant as defined above. Certainly there was (and remains) a dispute around the damage to the door, but I am convinced that that landlords were not pursuing that with the tenant in order to upset her. Rather the landlord was pursing the matter I accept because they had a genuine belief the tenant had damaged the door. The landlord was entitled to take that position and raise it as the landlord had done.
In relation to the photographs however, I have no doubt that the landlords have breached the tenants privacy in taking those photographs. Landlords should not take photographs of personal belonging of tenants without the consent or knowledge of the tenant, which was missing here. Tenants are entitled to privacy in their own home. Inspections are a lawful intrusion on that privacy expectation, but the limitation should be to the absolute minimum privacy intrusion as possible.
The landlords say that Tenancy Services had told them they should take photographs. I am not sure of the context of any such advice, but I doubt advice would have been given to take photographs of tenants private items as occurred here.
The landlord has breached the tenants reasonable privacy expectation.
The question then becomes whether exemplary damages should be ordered.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
There are two problems that arise for the Tenant in relation to any exemplary damages claim.
Firstly I do not consider the landlords intended to harass the tenant in having taken the photographs. The landlords were certainly misguided in having taken them, but having heard from the landlords I do not believe the landlords intended to cause upset to the tenant as the reason for taking them.
Secondly, even if this did amount to harassment (but I don’t consider is does), in order to require exemplary damages be paid, I would have needed to conclude the landlord acted intentionally, that is intending to breach the tenant’s quiet enjoyment right, and I don’t consider that they did.
The tenants application for exemplary damages has not been established so is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case only the landlord has applied for name suppression. Because the landlord has not been successful in their claim, the application for name suppression must be dismissed.

Tenancy Tribunal case 4646689 — Harassment at 53 Montgomery Cr, Landsdowne, Masterton 5810

At a glance

Tenancy Tribunal case 4646689 — Harassment at 53 Montgomery Cr, Landsdowne, Masterton 5810

At a glance

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

ANALYSIS

TENANTS CLAIM

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIM

ANALYSIS

TENANTS CLAIM

ANALYSIS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions