What was Tenancy Tribunal case 4647311 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4647311?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4647311?

The primary dispute was 14-day notice. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4647311?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9466345-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4647311 about?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4647311?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4647311?

The primary dispute was 14-day notice. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4647311?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9466345-Tribunal_Order_Redacted.pdf.

7 Hamstead Street, Wainuiomata, Lower Hutt 5014 Tenancy Tribunal Case 4647311 — 14-day notice

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

The tenant was phoned twice but calls went to voicemail on each call.
The landlord has request that the Tribunal makes the following orders: a. Termination of the tenancy. b. $1,800.00 for damage to the property because the police found evidence of cannabis being grown at the property. c. Exemplary damages for allowing the premises to be used for unlawful purposes. d. $20.44 for the filing fee. Termination of the tenancy on 4 October 2023
On Monday, 3 July 2023 the landlord emailed a termination notice to the tenant. The tenancy was periodic and the landlord’s grounds for termination were that the property is to be sold. The landlord has already made arranged real estate agents to act when the tenancy comes to an end. The end of the tenancy is 4 October 2023.
The termination is not in dispute. Emails show that Jackie Richards accepted the landlord’s termination of the tenancy. There is no reason to believe that Jackie Richards will not give vacant possession to the landlord on 4 October 2023. The Tribunal does not need to make an order for termination because the termination process is in place.

Termination for unlawful use of the premises?

The landlord has requested immediate termination for unlawful use of the premises. Following a search of the property by NZ Police on 28 July it was reported to the landlord that Jackie Richard’s partner, [redacted], had been charged with ‘Receiving Property’ on 7 June 2023 and that items were located at the tenancy address that were from a burglary of other addresses. The email also stated that there was ‘an amount of cannabis’ at the premises and there was a room at the premises ‘that was set up for the purpose of growing cannabis’.
A tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986. The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate (see s 56(1) Residential Tenancies Act 1986).
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
In the present case the presence of cannabis and a room set up for growing cannabis are breaches capable of remedy. So too is the use of the premises for storing items from a burglary. The harm caused by the breaches can be remedied within a reasonable period of less than 14 days. It is unknown what items were from the burglary, but it is most likely the police have removed those and therefore the tenant has no need to remedy the breach of storing stolen items. It is unknown if there is any harm to the premises from cannabis growing but again the landlord would be required to send a 14 day letter to the tenant to remedy the breach.
I have also considered whether it would inequitable not to terminate. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
The tenancy began in August 2016. The tenancy has been in place for over seven years. I am unaware of any other tenant breaches. There are no repeated warnings that have needed to have been given to the tenant. It is not known whether the tenant knew that the items her partner brought home were given to him from a burglary. The growing of cannabis would be considered intentional however, immediate termination outweighs the gravity of the breaches and is not necessary because the tenancy will end in just over a week anyway. The claim for immediate termination is therefore dismissed. $1,800.00 compensation for damage to the property
For the Tribunal to make orders about damage to property there must be evidence of damage to property and there must be notice to the tenant that the landlord required the damage to be rectified.
The landlord has not provided any evidence of damage to the property. The advice from the police that a room is being used for growing cannabis is not evidence of damage to the premises. There are no photos of damage. The landlord has not inspected the premises since receiving the letter from the police. Damage has not been proved and therefore the claim for compensation for damage is dismissed. Exemplary damages for allowing the premises to be used for an unlawful purpose.
As stated above, a tenant must not use the premises or permit the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 40(3A)(c) and Schedule 1A Residential Tenancies Act 1986.
I accept that the police established that there was a room used for growing cannabis. It is unlawful to grow cannabis. I find that Jackie Richards has committed an unlawful act.
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. Section 109(3) Residential Tenancies Act 1986 provides: If, on an application under subsection (1) (other than one referred to in subsection (3A)), the Tribunal is satisfied that the person against whom the order is sought committed the unlawful act intentionally, and that, having regard to— (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest,— it would be just to require the person against whom the order is sought to pay a sum in the nature of exemplary damages, the Tribunal may make an order accordingly.
There is no information about the extent of growing and the extent of use. For example there is no evidence proving that cannabis was being grown for supply and that the premises was being used for the sale of cannabis. That is more serious than growing for personal use. Growing cannabis has not resulted in a problem for the landlord, such as neighbours complaining of vehicles at the property all hours of the day and night. It has not resulted in rent not being paid. The landlord is understandably concerned for the safety of the premises however there is no evidence to support a view that the premises is now in danger as a result of the unlawful act. The public interest is to have tenancies where tenants do not cause problems through unlawful acts. The unlawful act of growing cannabis, while serious because it is currently illegal, is not serious regarding how it has affected the tenancy.
I am satisfied that action of the tenant’s partner regarding receipt of stolen goods has not had any effect on the landlord. Those most affected are the tenants, who could be facing charges.
The purpose of exemplary damages regarding the discovery of an unlawful act is to discourage a tenant, not to give an automatic reward to a landlord. For the tenant to be ordered to pay a landlord for an unlawful act it must be just to do so. Having considered all the evidence about the unlawful acts and the effect on the tenancy, I do not find it just to order exemplary damages to be paid to the landlord. Filing Fee
Because the landlord has not been wholly successful with the claim, the filing fee of $20.44 is not ordered.

Tenancy Tribunal case 4647311 — 14-day notice at 7 Hamstead Street, Wainuiomata, Lower Hutt 5014

At a glance

Tenancy Tribunal case 4647311 — 14-day notice at 7 Hamstead Street, Wainuiomata, Lower Hutt 5014

At a glance

Claims & awards

Order

Reasons

Termination for unlawful use of the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Termination for unlawful use of the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions