What was Tenancy Tribunal case 4680369 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4680369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4680369?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4680369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10745066-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4680369 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4680369?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4680369?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4680369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10745066-Tribunal_Order_Redacted.pdf.

25B Aurora Terrace, Hillcrest, Hamilton 3216 Tenancy Tribunal Case 4680369 — Mould & damp

Order

The application is dismissed.

Reasons

Mr Ukani appeared for the tenant. The landlord did not appear but filed written submissions.
The tenancy commenced on 01 April 2023 and was for a fixed term. The tenancy ended by agreement on 06 September 2023. The matter has been subject to several adjournments.
On 09 September 2023, the tenant filed a claim alleging that during the tenancy, the landlord had interfered with their reasonable peace, comfort, and privacy amounting to harassment. Tenants position
Shortly after moving into the property, the tenant raised concerns with the property manager about excessive moisture and dampness resulting in mould formation. Despite repeated assertions by the tenant, the landlord failed to accept that there was any inherent defect, instead suggesting that any mould was likely due to the tenants failing to properly ventilate the property or utilise the heat pump, something which the tenant stated that were doing. There is no claim made in the tenant’s application that the landlord has failed to provide or maintain the property free from excessive moisture and dampness. The tenant’s claim is that the landlord’s continuing denial of what the tenant views as an indisputable fact, and the “blaming” of the tenant, amounts to an interference with their reasonable peace comfort and privacy amounting to harassment. Landlords position
The landlord denies that the property had an inherent defect causing excessive moisture and dampness leading to mould to form. As stated, this is not a claim that has been made by the tenant in their application. On that basis, the Tribunal does not have to determine the truth of the matter. The landlord denies conduct interfering with the tenant’s reasonable peace comfort or privacy. The landlord acknowledges an exchange of emails but states none were unsolicited, and each was sent in response to an email received from the tenant. Law
The onus of proving the remaining claim rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, though, or under the landlord or having superior title of the landlord.
Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
If there has been a breach and loss has occurred, for example the interference has caused a loss of amenity, the tenant may claim damages.
An interference that also amounts to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 38 (3) and Schedule 1A of the Act.
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". See MacDonald v Dodds, CIV-2009-019-001524, District Court Hamilton, 26 February 2010.
The common law covenant for quiet enjoyment was set out in the case of Kenny v Preen [1963] 1 QB 499 (CA) in which Pearson LJ stated at 511: The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody but is a qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word ‘enjoy’ used in this connection is a translation from the Latin word ‘fruor’ and refers to the exercise and use of the right and having the full benefit of it, rather than to derive pleasure from it.
In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
The question as to whether a tenant’s reasonable peace, comfort or privacy has been significantly impacted by the actions of the landlord will involve an objective assessment of the facts.
It is not unusual for parties to an agreement to disagree. They are entitled to exchange their views about the facts and the law. If the parties are unable to resolve the matter using the provisions of the Act, they have recourse to the Tribunal to settle any disputes. Where parties are exchanging their views, they may, of course do so robustly. However, the question may arise as to whether the landlord has exceeded this limit by engaging in conduct that is objectively viewed is inappropriate, amounting to an interference with the tenants reasonable, comfort or privacy. Examples include using or engaging in derogatory or abusive language, demeaning, or belittling the tenant, unsolicited or excessive texts, calls, emails, or repeated visits to the property without notice or proper cause. Decision
Whether the property was free from excessive mould or moisture is not relevant for the purposes of determining the tenant’s claim.
The tenants evidence consists of the email exchanges and photographs. There is no other evidence regarding calls, or texts, or visits to the property by the landlord involving inappropriate conduct. I have carefully read each email exchange and asked the tenant to highlight anything in particular which they seek to rely on.
There is nothing to support a finding that, in the course of the email exchange, the landlord behaved inappropriately. They have simply denied the tenant’s claim and made suggestions, rightly or wrongly, on how the issue could be rectified. In doing so, they have not been derogatory, demeaning, or abusive. In the tenant’s submissions they reference a comment made in one of the landlord’s emails, stating that they had not been using the heat pump for financial reasons, which the tenant views as unethical. In the email concerned the landlord simply notes “you had previously mentioned to me that mowing the lawns was a financial concern for yourself and as such perhaps you are not using the heat pump and fans as you are trying to save costs.” I am not satisfied that this comment by the landlord amounts to an interference.
Based on the evidence, I am not satisfied that the conduct of the landlord in these matters has interfered with the tenant’s reasonable peace comfort or privacy and the claim is dismissed. The claim is therefore dismissed. Name suppression
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
The landlord has been wholly successful defending the claim made against them and accordingly the Tribunal supresses their name.

Order

The application is dismissed.

Reasons

Mr Ukani appeared for the tenant. The landlord did not appear but filed written submissions.
The tenancy commenced on 01 April 2023 and was for a fixed term. The tenancy ended by agreement on 06 September 2023. The matter has been subject to several adjournments.
On 09 September 2023, the tenant filed a claim alleging that during the tenancy, the landlord had interfered with their reasonable peace, comfort, and privacy amounting to harassment. Tenants position
Shortly after moving into the property, the tenant raised concerns with the property manager about excessive moisture and dampness resulting in mould formation. Despite repeated assertions by the tenant, the landlord failed to accept that there was any inherent defect, instead suggesting that any mould was likely due to the tenants failing to properly ventilate the property or utilise the heat pump, something which the tenant stated that were doing. There is no claim made in the tenant’s application that the landlord has failed to provide or maintain the property free from excessive moisture and dampness. The tenant’s claim is that the landlord’s continuing denial of what the tenant views as an indisputable fact, and the “blaming” of the tenant, amounts to an interference with their reasonable peace comfort and privacy amounting to harassment. Landlords position
The landlord denies that the property had an inherent defect causing excessive moisture and dampness leading to mould to form. As stated, this is not a claim that has been made by the tenant in their application. On that basis, the Tribunal does not have to determine the truth of the matter. The landlord denies conduct interfering with the tenant’s reasonable peace comfort or privacy. The landlord acknowledges an exchange of emails but states none were unsolicited, and each was sent in response to an email received from the tenant. Law
The onus of proving the remaining claim rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Residential Tenancies Act 1986 (The “Act”).
Section 38(1) of the Act provides that the tenant shall be entitled to quiet enjoyment of the premises without interruption by the landlord or any person claiming by, though, or under the landlord or having superior title of the landlord.
Section 38(2) of the Act states that a landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
If there has been a breach and loss has occurred, for example the interference has caused a loss of amenity, the tenant may claim damages.
An interference that also amounts to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. See section 38 (3) and Schedule 1A of the Act.
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". See MacDonald v Dodds, CIV-2009-019-001524, District Court Hamilton, 26 February 2010.
The common law covenant for quiet enjoyment was set out in the case of Kenny v Preen [1963] 1 QB 499 (CA) in which Pearson LJ stated at 511: The implied covenant for quiet enjoyment is not an absolute covenant protecting a tenant against eviction or interference by anybody but is a qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the tenant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word ‘enjoy’ used in this connection is a translation from the Latin word ‘fruor’ and refers to the exercise and use of the right and having the full benefit of it, rather than to derive pleasure from it.
In Smith v Floris Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated, “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents”.
The question as to whether a tenant’s reasonable peace, comfort or privacy has been significantly impacted by the actions of the landlord will involve an objective assessment of the facts.
It is not unusual for parties to an agreement to disagree. They are entitled to exchange their views about the facts and the law. If the parties are unable to resolve the matter using the provisions of the Act, they have recourse to the Tribunal to settle any disputes. Where parties are exchanging their views, they may, of course do so robustly. However, the question may arise as to whether the landlord has exceeded this limit by engaging in conduct that is objectively viewed is inappropriate, amounting to an interference with the tenants reasonable, comfort or privacy. Examples include using or engaging in derogatory or abusive language, demeaning, or belittling the tenant, unsolicited or excessive texts, calls, emails, or repeated visits to the property without notice or proper cause. Decision
Whether the property was free from excessive mould or moisture is not relevant for the purposes of determining the tenant’s claim.
The tenants evidence consists of the email exchanges and photographs. There is no other evidence regarding calls, or texts, or visits to the property by the landlord involving inappropriate conduct. I have carefully read each email exchange and asked the tenant to highlight anything in particular which they seek to rely on.
There is nothing to support a finding that, in the course of the email exchange, the landlord behaved inappropriately. They have simply denied the tenant’s claim and made suggestions, rightly or wrongly, on how the issue could be rectified. In doing so, they have not been derogatory, demeaning, or abusive. In the tenant’s submissions they reference a comment made in one of the landlord’s emails, stating that they had not been using the heat pump for financial reasons, which the tenant views as unethical. In the email concerned the landlord simply notes “you had previously mentioned to me that mowing the lawns was a financial concern for yourself and as such perhaps you are not using the heat pump and fans as you are trying to save costs.” I am not satisfied that this comment by the landlord amounts to an interference.
Based on the evidence, I am not satisfied that the conduct of the landlord in these matters has interfered with the tenant’s reasonable peace comfort or privacy and the claim is dismissed. The claim is therefore dismissed. Name suppression
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
The landlord has been wholly successful defending the claim made against them and accordingly the Tribunal supresses their name.

Tenancy Tribunal case 4680369 — Mould & damp at 25B Aurora Terrace, Hillcrest, Hamilton 3216

At a glance

Tenancy Tribunal case 4680369 — Mould & damp at 25B Aurora Terrace, Hillcrest, Hamilton 3216

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions