What was Tenancy Tribunal case 4663918 about?

The tribunal order states: [The landlord/s] and Sandra Cavaney as Trustees of Cavaney Family Trust must

How much money was awarded in case 4663918?

Cleaning: $75.00 awarded to landlord; Compensation: Unlawful Termination: $1,800.00 awarded to tenant; Kitchen Vinyl: $500.00 awarded to landlord; Wall Painting: $350.00 awarded to landlord

What type of tenancy dispute was case 4663918?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4663918?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9845097-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4663918 about?

The tribunal order states: [The landlord/s] and Sandra Cavaney as Trustees of Cavaney Family Trust must

How much money was awarded in case 4663918?

Cleaning: $75.00 awarded to landlord; Compensation: Unlawful Termination: $1,800.00 awarded to tenant; Kitchen Vinyl: $500.00 awarded to landlord; Wall Painting: $350.00 awarded to landlord

What type of tenancy dispute was case 4663918?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4663918?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9845097-Tribunal_Order.pdf.

220 Grove Road, Mayfair, Hastings 4122 Tenancy Tribunal Case 4663918 — Property damage

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Reasons

Claims and awards in Tenancy Tribunal application 4663918. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$75.00		34. The tenant says that the property manager was unduly picky when undertaking her inspections of the premises, which undermined the tenants’ enjoyment of the…
Wall painting	$350.00		Wall painting
Vinyl repair	$500.00		Vinyl repair
Compensation: unlawful termination		$1,800.00	unlawful termination
Total award	$925.00	$1,800.00

Both parties attended the hearing.

The tenants were represented by [The tenant/s]. The landlord Trust was represented by trustees [The landlord/s] (property manager) and Sandra Cavaney. Background

On 22nd August 2023, the tenants filed an application with the Tribunal. Their application asked that the Tribunal declare a notice of termination issued by the landlord to the tenants on 28 June 2023 (“the termination notice”) to be retaliatory.

The tenants also sought: a. exemplary damages for the termination notice; b. an Order for refund of the bond; c. compensation for breach of their right to quiet enjoyment of the premises d. exemplary damages for breach of Healthy Homes (ventilation) standards.

Following a hearing at which both parties appeared, the Tribunal made an Order on 29 October 2023 (“the October Order”) that the bond be paid to the tenants, declaring the notice to be retaliatory and awarding exemplary damages against the Landlords. The tenants' bond was refunded on the basis that as the landlord had not filed a claim against the bond, return of the bond to the tenants was required under section 22B RTA. The Tribunal dismissed the tenants’ applications for breach of their right to quiet enjoyment and failure to comply with healthy homes standards.

The landlord then filed an application for rehearing in respect of the October Order. A re hearing was granted by Order dated 10 November 2023.

On 1 November 2023 the landlords filed a cross application seeking compensation for: a.carpet cleaning; b.wall painting; c.vinyl replacement.

This hearing is to: a. rehear the tenants’ applications; and b. determine the landlords’ counterclaims.

At the start of the hearing the tenants confirmed that they wish all their original applications to be reheard. Bond

The October Order directed payment of the bond to the tenants on the basis that s.22B RTA requires a bond to be paid to tenants if they have applied for the bond and the landlord has not filed a counterclaim.

The Order is as required by the RTA. The bond has been paid to the tenants and the Order does not require revisiting. Retaliatory Notice

On 14 June 2023 the tenants sent an email to the landlords setting out a number of issues of concern to them regarding maintenance of the premises and the behaviour of the property manager.

The landlords then issued the termination notice, requiring that the tenants vacate in 63 days on the basis that the daughter of [The landlord/s] (granddaughter of Sandra Cavaney) was going to be moving into the premises.

The tenants say that notice was retaliatory.

Section 54(1) provides that: “(1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.”

The landlords' evidence is that the granddaughter had been living in another property owned by the Trust but that it had been the intention for some time that she move into these premises as they are warmer and also have additional bedrooms that would allow the granddaughter to have flatmates to subsidise her accommodation costs.

I understand that was seen as helpful at the time as she was saving for an overseas holiday.

It was also intended that when the granddaughter moved into these premises, refurbishment work could be carried out in the property she had been living in.

Section 51(1) provides that: “A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if-(a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family”

In these circumstances, where the granddaughter was adequately accommodated in another Trust property, it is difficult to see that these premises were “required” as her principal place of residence. It seems a matter of preference rather than necessity. I note too that the premises were preferred as a source of income for the granddaughter as well as providing a place to live.

While I accept that there may have been a general plan for the granddaughter to be able to occupy these premises, there is no evidence indicating why 28 June 2023 was chosen as the time to put that plan into effect. These premises are said to be warmer, but the notice period expired in spring. There is no evidence of any steps having been taken toward the refurbishment work in the other property. There is no evidence of any request on the granddaughter’s part to be able to move into the premises at that time – I understand the change was initiated by the landlords.

The evidence only identifies one factor that might account for the timing of the notice, that being the tenants’ 14 June e-mail. Given the coincidental timing, in my view it is fair to infer that in giving the notice the landlords were motivated at least in part by the tenants raising their concerns as they did.

I agree with the finding in the October Order regarding the motivation for the termination notice. However, with respect, I disagree with the award of exemplary damages against the landlord for issuing it.

Exemplary damages can only be awarded where an unlawful act has been committed. Under s.54(3) an unlawful act is only committed, “........if the notice is declared under subsection (2) to be of no effect.”

Section 54(1) provides a 28 working day period within which a tenant must bring an application to set aside a notice of termination as being retaliatory.

In Burrows v Lindsay Richards [2021] NZTT Tauranga 4280243, 4285621, the Tribunal dismissed an application to set aside a notice of termination where the application was filed 15 working days after the expiry of that 28 working day filing period. The Tribunal’s finding was that the notice period is mandatory. In this case the termination notice was issued on 28 June 2023. The tenants’ applicaiton was filed on 22 August 2023, 38 working days later.

The Burrows decision cited the decision of the District Court in Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081 in which the Court noted: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.”

I accept that here, the tenants had recently had a baby and the shock of being evicted caused significant distress and pressure – making it understandable that they immediately tried to find somewhere else to live rather than immediately applying to set the termination notice aside. Nevertheless, retrospectively extending the time period within which such an application could be filed by the tenants, for a further 10 working days, goes beyond a, “...short overrun of a day or two.” I note too that the tenants found other accommodation and complied with the termination notice rather than seeking to overturn it.

In those circumstances I find that the Tribunal could not have made an Order setting the termination notice aside and could therefore not have made an award of exemplary damages.

The landlords have however issued a termination notice that they were not entitled to issue. That is a beach of their obligations to the tenant under the RTA. The tenants are entitled to compensation for any loss caused by that breach.

The evidence persuades me that the loss of enjoyment of the premises and the stress of having to find a new home was considerable and was unwarranted. I find that compensation equal to 3 weeks’ rent would be appropriate. Breach of Right to Quiet Enjoyment

The tenant says that the property manager was unduly picky when undertaking her inspections of the premises, which undermined the tenants’ enjoyment of the premises.

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)).

Here the tenants confirm that the inspections were not carried out with unreasonable frequency and were not unreasonably intrusive.

Landlord’s and tenants may sometimes disagree over matters such as what amounts to “reasonably clean and tidy” in terms of how the tenant is required to keep the premises under s.40. However, if a landlord is not conducting inspections with unreasonable frequency or with an unreasonable level of intrusion, I do not consider that difference if view to be the kind of breach s.38 refers to.

I do not find this claim proved. Healthy Homes

Having reheard the matter I agree that the evidence does not support a finding that the premises failed to comply with Healthy Homes standards.

I concur with the findings and reasons given in the October Order which I need not repeat here. Landlords’ Claims

The landlords claim that the tenants breached their obligation to leave the premises in a reasonably clean and tidy condition. Photographs provided suggest that the premises were left reasonably clean and tidy although some very close up shots appear to show a couple of areas where some additional cleaning might have been warranted.

In any event, while the property manager says she spent a great deal of time cleaning the premises after the tenants vacated, no compensation claim is pursued. Damage claims

In terms of s.49B it is for the landlord to prove—(i) that any damage is not fair wear and tear; and(ii) that any destruction or damage occurred in circumstances described in subsection (1)(b); and(iii) that any insurance moneys are irrecoverable for the reasons described in subsection (4)(a); and(b) it is for the tenant to prove—(i) that any destruction or damage was not intentionally done or caused as described in subsection (1)(a); and(ii) that any destruction or damage was not caused by a careless act or omission described in subsection (2).”

For damage that is unintentional, a tenant's liability is limited to the lesser of the insurance excess or 4 weeks’ rent. Carpet damage

Photos show a clear bright green stain in what the tenants say was their daughter’s bedroom. The landlord says that a quote was obtained for $75.00 to remove that stain but when other marks were found a clean of the whole carpet was required. The landlords claim recovery of the cost.

The tenants accept that the green stain was caused during the tenancy but say that the carpets were cleaned before they vacated and they are not responsible for any other marks.

There is no reliable entry inspection report. One has been provided but it is dated 22 April 2021, around a year before this tenancy started. It is not signed by the tenant.

I do not find it proved that carpet stains, other than the one mentioned, were caused during the tenancy.

The landlord is entitled to compensation for the cost of removing that stain. Vinyl Floor.

Photographs show marks and tears to the vinyl flooring beneath where the dining table was placed. They appear to have been caused by chairs scraping under the table or the table being moved. The tenants say that is normal usage and the resulting damage is fair wear and tear.

The flooring was 2 years old. The evidence persuades me that the damage is more than fair wear and tear and the landlord is entitled to compensation for its reinstatement.

The landlords say that no insurance claim has been made and that damage to the flooring would not be covered as it is a chattel. There is no evidence of that position, which only the landlords are in a position to provide.

The agreement represents to the tenant that the landlords have Premier Rental Property cover with AMI, with a $500.00 excess per claim.

The best evidence available suggests that the landlord holds insurance cover and the tenant's liability is limited to the excess payable. Wall repaint

Photographs show a clear mark on the wall of a bedroom where a bed used by the tenants’ daughter was situated. The tenants say they tried to remove the marks but couldn't. The property manager says she also tried to remove the marks but couldn't, so it is necessary to paint the wall.

I find it proved that the damage was more than fair wear and tear and that painting of the wall is necessary to reinstate it.

Under s.49, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

The tenants say that had they been aware that the landlords intended to paint the wall and claim the cost from them, they could have arranged to have friends or family do the painting at no cost.

In my view in terms of s.49 the tenants ought to have been given that opportunity – there were no pressing circumstances that would have made that an unreasonable approach for the landlord.

I need to consider though that the damage was the tenants’ responsibility and ought to have been remedied by the end of the tenancy. There is likely to have been some cost to the tenants even in time, inconvenience and materials, had they done the work.

I therefore award compensation to the landlord in terms of the quote provided, with a modest reduction to recognise that the tenants were not given an opportunity to remedy the breach at lesser cost.

Both parties have had claims upheld and no award is made in respect of the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4663918. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning	$75.00		34. The tenant says that the property manager was unduly picky when undertaking her inspections of the premises, which undermined the tenants’ enjoyment of the…
Wall painting	$350.00		Wall painting
Vinyl repair	$500.00		Vinyl repair
Compensation: unlawful termination		$1,800.00	unlawful termination
Total award	$925.00	$1,800.00