Published tribunal order
Tenancy Tribunal case 4681710 — Rent arrears at 28 Hanlon Crescent, Narrow Neck, Auckland 0624
Decided 20 Aug 2024 · Published 20 Aug 2024 · Application 4681710
- Rent arrears
- Exemplary damages
Party names are redacted in the official published order.
Order
- Vivien Pu must pay [The tenant/s] $716.44 immediately, calculated as shown in table below.
- The landlord’s claim for rent arrears is allowed. The remaining claims by the landlord are dismissed.
Reasons
- Both parties attended the hearing. The landlord was assisted by the court- appointed mandarin interpreter. There was no appearance by the second tenant.
- The tenant has claimed the following: a. Unlawful premises b. Failure of landlord to lodge bond c. Breach of quiet enjoyment d. Failure to maintain e. Unlawful entry f. Increasing rent within 12 months g. Damage caused to tenant’s property h. Filing fee reimbursement.
- The landlord has filed a cross application and claims the following: a. rent arrears b. Garden and room reinstatement c. Rubbish removal d. Compensation for harm to children e. Dog noise f. Lawn compensation g. Misuse of internet.
- The tenancy began on or about 22 May 2022 and ended on 13 July 2023. The premises consist of a two-level house with the tenant renting the downstairs area of the dwelling.
- The parties entered into a house sharing agreement on 21 May 2022. On 11 March 2024 this Tribunal declared that the claims fall within the Residential Tenancies Act 1986 and that the Tenancy Tribunal has jurisdiction to hear these claims. The Tribunal held that it was not a house sharing arrangement.
- Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the parties to establish their respective claims on “the balance of probabilities”. That also means that they must establish that what they are claiming is more likely than not.
- I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
- Both parties submitted substantial documentation with their online applications. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.
- During the course of the hearing I also heard evidence from Rhonda Woodriffe, a witness for the tenant. Unlawful premises:
- The tenant claims that the premises did not have a proper kitchen. There were no cooking facilities and no ability to wash anything. There was no extractor fan and no oven.
- The tenant brought her own fridge, kettle and microwave. There were no washing facilities, only an outside tub. There tenant claims there was no firewall and no noise barrier.
- The tenant says she frequently heard the landlord’s children outside the internal door.
- The landlord says that she was not in the country when the tenant moved in. She says that she had a property manager take care of the process. She also says that the tenant stated she had a caravan which could be used as a spare room.
- The landlord says that there was an outside wash tub where she had put her washing machine and dryer. The landlord also stated that there was space in the bathroom where she could have put her washing machine.
- The tenant says that there was no room in the bathroom nor was there plumbing. There was no separate power meter downstairs. The also shared the internet and water.
- The landlord says that the tenant was able to come upstairs anytime to do her cooking. The landlord also accepted that there were no facilities downstairs for the tenant to cook.
- The tenant maintains that she did not have any access upstairs. The landlord accepted that while she was in China there was no ability for the tenant to go upstairs. The tenant says that the internal door was always locked.
- There was no separate water or power meter for the upstairs and downstairs units, consequently the tenant was advised that her rent covered power, internet and water.
- As I am sure the landlord is aware, unless utilities are attributable to the tenant’s exclusive occupation of the premises, they are not a tenant liability. See section 39(3) Residential Tenancies Act 1986 (“the Act”).
- Section 78A(1) provides that the Tribunal has jurisdiction to consider and determine a claim on whether any residential premises are “unlawful residential premises”.
- Under section 78A(2) “unlawful residential premises” are defined as residential premises that are used for occupation for a person for a place of residence but: a. that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and b. where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c)... has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
- Residential premises are defined in section 2 as any premises used or intended for occupation by any person as a place of residence, whether or not that occupation or intended occupation for residential purposes is or would be unlawful.
- The tenant claims the premises are unlawful. The onus is on the tenant establish her claim that in fact the premises were unlawful. She must provide, at least prima facie, evidence to support the premises being unlawful. Unfortunately, she has not done so. At the very least I would have expected evidence from the Council confirming that the downstairs area lacked any formal consent for conversion to a separate dwelling. In the scheme of things the organisation responsible for lawful housing is the Council.
- It follows that the tenant’s claim unlawful premises must be dismissed. It also follows that the tenant’s claim for a rent refund must also be dismissed. Failure to lodge bond:
- The tenant claims that the landlord failed to lodge her bond of $900.00. The landlord stated that she did not lodge the bond as she believed in the beginning that it was a house sharing agreement.
- The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
- Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
- For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
- Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
- During the hearing the landlord confirmed that she was still holding the tenant’s bond.
- I am satisfied that the landlord has breached their obligations because the bond was not lodged within 23 working days “after the payment [was] made” irrespective of the initial house sharing agreement. The bond money does not belong to the landlord, there was no right for them to hold it. The landlord continues to hold the tenant’s bond money.
- I consider exemplary damages should be ordered for these reasons: a. I consider it likely the failure to lodge the bond was intentional. b. The landlord was initially represented by a professional property manager who should have been well aware of the landlord’s obligations to lodge the bond following the payment being made. c. The effect for the tenant is that her bond was not secure in the Bond Centre. d. There is a strong interest for landlords, tenants and the public generally that the bond system be robust, and of course that means landlords lodging tenants bond money as they are required to do. e. It would be just to make an order.
- The maximum level of exemplary damages for failing to lodge the bond is $1500.00. For similar reasons as set out above, I order one third of the maximum, that is $500.00 exemplary damages to be paid to the tenants. Breach of quiet enjoyment:
- The tenant claims that the landlord breached her quiet enjoyment and harassed her.
- The tenant says that there was no sound proofing within the premises. The tenant says that they felt like they were living in the same house. She says they could hear everything including children playing, in the bathroom and the landlord on the phone.
- They could also hear the piano which was played every day. The tenant says that the piano playing became invasive. The tenant asked for some break time. She then asked the landlord to move the piano to the lounge away from the door.
- The tenant also claimed that the crying of the landlord’s 5-year-old child was very invasive. The tenant also stated that the landlord would often come to her French doors to speak with her without advising her in advance.
- The tenant also stated that the landlord’s children would often come down to the tenant’s front lawn to play. The tenant says that the front lawn was an extension of her place. She says that the landlord had a large garden area of their own but instead they came down to play in the tenant’s area.
- The tenant says that the landlord also used the back door to access the house and because of this they had no privacy. They always had to keep the curtains closed.
- The tenant says that on the day they moved out the landlord shouted at her saying she had to put a ticket on the rubbish bin. She also screamed at the tenant about cleaning the house.
- The most concerning claim was in respect of the landlord calling a friend who also happens to be a security guard. The friend turned up to the property dressed in a Matrix Security uniform as the tenant was preparing to leave. The landlord asked her friend to move the tenant off the property. The security guard said that she had not paid the rent and needed to get off the property.
- The tenant says that the landlord had two cameras - one pointing down the driveway and the other pointing to the front door. She claims that this was a further breach of her privacy and her quiet enjoyment.
- The landlord stated that she has two children. She stated that it is normal for children to cry and fight with each other. She also stated that it is normal for a child to practice the piano. The landlord says that her daughter is very busy and did not have time to go down to play in the tenant’s front lawn. She does not accept that she allowed her children to go to the tenant’s area to play.
- The landlord says that she never shouted at the tenant. She asked the tenant nicely to put a tag on the rubbish bin. The landlord also called her friend who happened to be a security guard. The landlord says that there was only one camera and this was only pointing towards the gate. The landlord pointed to her photographs which clearly show the camera pointing towards the gate.
- 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) 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 section 38(3) and Schedule 1A 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.
- I find that the landlord breached the tenant’s quiet enjoyment by allowing a friend, who also happened to be a security guard to turn up to the address on the day the tenant was vacating. I find that this is a form of harassment. The tenant was vacating that day. She was also being charged rent up to and including that day. She still had a right to be there. Allowing a friend to turn up in a security guard uniform was clearly designed to intimidate and harass.
- I find this claim proven.
- In relation to the noise and behaviour of the children, I do not accept that this can be characterised as a pattern of behaviour by one person to another. This was simply children being children, and while irritating over time cannot be described as intending to trouble, worry or distress, harass or to wear out, tire or exhaust. Based on the evidence filed I also find that there was no breach of privacy in respect of the landlord’s video cameras. Failure to maintain:
- The tenant claims that the landlord failed to maintain the premises.
- The tenant says that the lawnmowing issues were a problem. The tenant asked the landlord to have the lawns done every two weeks. When the landlord’s husband turned up for two months he approached the tenant about a rent increase.
- The landlord wanted another $50.00 per week. The tenant agreed that she would only pay an extra $30.00 if the landlord promised to do the lawns every two weeks. There was then a third approach for extra money for lawns. In short the lawns were not done as arranged.
- The landlord says that the lawns were mowed every three to four weeks depending on the weather. The lawns were done by the landlord’s gardener. The was a period of seven weeks where the gardener had to go back to China as his mother was sick.
- The tenant claims that the television reception was often interrupted. The reception was poor. The tenant asked the landlord to fix the television. There was one in the bedroom and one in the lounge. The lounge television had the ability to pick up free to air. Both devices struggled with the WIFI.
- The tenant complained to the landlord about the televisions. The landlord replied that they were working properly and it was just the signal.
- The tenant says that the internet often failed. The tenant’s friend installed an internet booster. The tenant stated that she told the landlord about the internet.
- The landlord stated that the internet was working properly upstairs but that the internet speed was slow at times. The landlord says that the tenant demanded she change the internet provider. She also advised during the hearing that she was locked into a contract and could not change providers.
- The tenant further claims that a roller blind chain broke. On one occasion she had to wait three weeks for a replacement chain. She says that she had to go three weeks without curtains.
- The landlord tried to fix but could not find anywhere to replace the blind chain. The tenant says the bathroom window latch was broken for six weeks.
- The landlord says that the latch just needed screwing back.
- The tenant also says the door latch broke which meant she could not close the door properly for three weeks. On one occasion the tenant says she was locked in the bathroom and had to shout out to her son to let her out. The landlord says she purchased a new bathroom door handle and installed it herself.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- I am not satisfied that the landlord has deliberately failed to maintain the premises.
- There was no 14-day notice, and I can see no corroborating evidence confirming where the landlord was put on notice that maintenance was required and that she refused. And in a residential tenancy televisions and internet accounts are the responsibility of the tenant. I have also sighted text messages between the parties which confirm that the landlord made all reasonable attempts to attend to many of the maintenance issues.
- In those circumstances, I am not satisfied that the landlord has committed an unlawful act or breached their obligations.
- The tenants’ application in respect of failing to maintain is dismissed. Unlawful entry by landlord:
- The tenant claims that the landlord entered the property without notice.
- The tenant says that the landlord turned up without notice on several occasions. She says the landlord would often come to her front door. This was an issue when tensions were rising.
- The tenant says that the landlord would come down and knock on the glass doors unannounced and that she would let her in. She says that the landlord came down on three separate occasions in one afternoon to show the house to new tenants.
- The tenant asked the landlord to give her notice and to have just one viewing time a couple of times per week.
- The landlord stated that the tenant was living in the same house. Both parties agreed that at no time did the landlord ever enter the premises without the tenant being there. When the tenant complained about the number of unannounced visits the landlord then said she would have to be out in two weeks.
- The landlord explained the tenant stopped paying rent and which she says is why she gave the tenant two weeks to vacate.
- I also record that the tenant did not file a claim against the landlord for unlawful termination.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance (section 48 of the Act).
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
- 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.
- Based on the evidence before me I find that the unannounced attendances by the landlord, while certainly frustrating, were a technical breach of section 48 of the Act (unlawful entry) and section 38 (quiet enjoyment). While the tenants were still entitled to exclusive possession of the premises this however must also be viewed in context of both parties residing on the same property. I also note that the tenant did not serve a 14-day notice on the landlord in response to the unannounced visits.
- I make no award to exemplary damages in respect of this claim. Increase of rent within 12 months:
- The tenant claims that the landlord increased the rent within 12 months of the start date of the tenancy.
- The tenant says that the landlord breached her obligations by increasing the rent in the first 12 months.
- The landlord says that this was not a rent increase but rather an increase in power and water cost increases. She says that she never said to the tenant that it was a rent increase.
- Section 24 of the Act clearly states that the rent must not be increased within 12 months after the date of the commencement of the tenancy.
- Based on the evidence filed by the tenant I find that this was a rent increase. The tenancy began on 22 May 2022 and after six months the landlord’s husband notified the tenant that the rent would increase to $500.00 per week. The tenant says she was threatened with eviction if she did not agree. After several discussions the tenant offered to pay an extra $30.00 per week as she felt she needed to agree to this to avoid eviction and only if the landlord agreed to mow the lawns every two weeks. There was no written notice to increase the rent as required by the Act.
- I have also sighted the rent ledger confirming the increase in rent from $450.00 to $480.00 on 22 January 2023.
- I find this claim proven and order a refund of the extra rent paid by the tenant unlawfully. Damage to the tenant’s property:
- The tenant claims that the landlord caused damage to her washing machine and dryer.
- The tenant says that both machines failed as a direct result of environmental factors. There were snails in the airways of the dryer and the power board on the washing machine was corroded.
- The tenant stated that both machines were 4 to 5 years old.
- The landlord says that it is common sense that you do not put washing machines and dryers outside. The landlord also says that there was space in the bathroom for the washing machine. The landlord maintains that the tenant could have come upstairs to use her laundry upstairs. The tenant says that she did not have a key to the upstairs area of the house.
- I find that there is no evidence linking the landlord to this claim. It is simply not possible for a landlord to be held accountable for the issues claimed to be associated with the tenant’s washing machine and dryer.
- This claim must be dismissed. Landlord’s cross application:
- The landlord claims that the tenant has outstanding rent arrears.
- The landlord has produced a rent ledger confirming the amount of $2204.00 as at 13 July 2023.
- The tenant says that she only owes only $1714.00. She states that according to the landlord’s rent statement she missed four rent payments. She further states that the landlord advised her of the missed rent payments on or about mid-June 2023. The tenant says that she made an immediate payment of one week rent to catch up. She says that this payment is missing from the landlord’s rent statement. The landlord further confirmed that she has double checked all payments received and that her rent ledger is correct.
- Having sighted the landlord’s rent ledger I am satisfied that the tenant is responsible for the rent debt as shown. The bond money of $900.00 has been deducted from the rent arrears leaving a total amount ordered of $1304.00.
- The claim for rent arrears is proven.
- The landlord also makes the following claims against the tenants: Rooms and garden reinstatement:
- The landlord says that the tenant’s outdoor furniture has killed the grass. The landlord also says that the tenant’s dog damaged the fence and damaged the walls under the window and carpet. The landlord noticed this after she moved out. The carpet was approximately 5 years old.
- I note that the landlord has only provided a quote in support of these claims. The landlord’s photographs were taken on 19 September 2023. The tenant denies these claims. She also provided a video during the hearing of the inside of the property.
- The evidence filed does not support this claim. The claim is dismissed. Rubbish removal:
- The landlord is claiming $200.00 for removal of a Christmas tree and for picking up the dog poo and removing. The tenant says that she does not throw dog poo around. The tenant says there is no evidence re the poo. The tenant says that it was only a small tree which would not have cost $200.00 to remove.
- The claim is not supported by the evidence filed. The landlord has also failed to file an expense claim in the form of a paid tax receipt for this expense.
- This claim is also dismissed. Compensation for harm caused to landlord’s children:
- The landlord says that the tenant’s behaviour has caused her and her daughter a lot of stress. The landlord said that when her daughter was playing the piano the tenant would yell to stop playing the piano. The tenant says that she denies this claim and says that there is no evidence in support of this.
- I agree with the tenant in that there is no evidence to support this allegation.
- This claim is also dismissed. Dog noise:
- The landlord says that the tenant’s dog would bark in the middle of the night. She says that they were often woken up in the middle of the night to the tenant’s dogs barking. The tenant does not accept this claim. She states that there is no evidence in support of this claim.
- As with the above there is no evidence to support this claim by the landlord. There was no 14-day notice served on the landlord in respect of this issue.
- This claim is dismissed. Lawn:
- The landlord is claiming $15.00 for lawnmowing which the tenant didn’t pay. Misuse of internet:
- The landlord says that the tenant was running her business from the downstairs area. Says that she was using the internet for business purposes. The tenant responded by saying that many people work from home. She also says that she was not running a business from her home. She was not earning money and was instead looking after her unwell son.
- The claims by the landlord for lawn and internet use are also dismissed. The landlord has the onus to prove these claims on the balance of probabilities and has not done so. The evidence filed by the landlord does not support the award of these claims.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.
- The tenant and landlord applied for non-publication of their names and identifying details. The tenants have substantially succeeded in their proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.