Published tribunal order
Tenancy Tribunal case 4685130 — Healthy homes at 2 McVay Street, Napier South, Napier 4110
Decided 13 May 2024 · Published 13 May 2024 · Application 4685130
- Healthy homes
- Property damage
- Exemplary damages
Order
- This Order is in addition to and does not replace, the Tribunal's Order made in these proceedings dated 15 November 2023.
- The landlords must pay the tenant the sum of $300.00 immediately, calculated in the table below.
- All other applications are dismissed.
Reasons
- On 15 November 2023 this matter was adjourned to allow for: a. a Healthy Homes assessment to be obtained by the landlord; and b. for the landlords to file any cross application they wanted considered.
- A case conference held on 9 February 2024 noted the following issues for determination: a. the tenant did not accept the accuracy of the Healthy Homes report and considered that further compliance work was required; b. the tenant sought compensation for the interference with her quiet enjoyment of the premises from the remediation and other repair/ maintenance work carried out; c. the landlords sought exemplary damages for: i. use of the premises for an unlawful purpose (growing and smoking cannabis); and ii. unlawful subletting of the premises. d. the landlords sought a declaration that they are entitled to give a notice of termination under s.51(2)(f), on the basis that the tenant’s unreasonableness means that it would not be reasonably practicable for her to remain in occupation while further work is carried out.
- Since the date of the case conference, a further Healthy Homes assessment has been carried out and further remediation/ compliance work has been completed by the landlord. The tenant’s claim is now only for compensation for the interference with her quiet enjoyment of the premises caused by the work that was done.
- The landlords’ claims remain as outlined at the case conference. Breach of Right to Quiet Enjoyment
- Section 38(1) and (2) RTA provides that: “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) 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.”
- Application of that section in these circumstances is not a matter of blame or criticism of the landlord. If the landlords were required to undertake repair and compliance work, it is entirely appropriate that it be carried out – provided appropriate notice is given and it is carried out with due consideration for tenant’s occupation of the property.
- That work is however carried out for the primary benefit of the landlords as owners of the property. If, while that work is carried out, there is an interference with the tenant’s right to quiet enjoyment of the premises, the tenant should be compensated, as otherwise she continues to pay full rent for occupying premises for which she is not getting the full benefit of what she is paying for.
- Much of this hearing and previous hearing time, has involved a consideration of the tenant’s position that the landlords’ repair and maintenance work has been carried out badly and without due consideration for her and her family’s needs. The landlords in turn say that the tenant is so critical and demanding, that it is barely possible to have necessary work carried out.
- The landlords run a building company. Three of their tradesmen who worked at the premises, provided witness statements. Only one, Mr Malot, attended the hearing and was able to be examined on his statement. I have not taken onto account the statements provided by the other tradesmen.
- My assessment of the evidence presented is that: a. The landlords and their employees have endeavoured to be respectful of the tenant’s occupation of the premises while the work was carried out. Apart from the impact on the tenant’s use and enjoyment of the premises inherent in having the work carried out, I don’t find anything in the landlords’ conduct or that of their employees, that constitutes a breach of their obligations under the RTA. b. The landlords and their employees considered the tenant to be demanding (for instance about the adequacy of boundary fencing) and unaccommodating, (for instance by asking the tradesmen no to use her toilet). The premises are her home. The evidence shows that the tenant has undoubtedly had high expectations about what work was carried out at the premises and how it should be carried out. She has been critical of the landlords. c. Different people have different approaches to such things. Allowing for the defensive positions the parties ended up in, I don’t see the tenant’s expectations as vastly more unreasonable than that of many home occupiers who are having work carried out. I find no breach of the tenant’s obligations under the RTA in that regard.
- The work took approximately 2 weeks and involved work in the bathroom, replacement of the front fencing and sanding and painting at the front and rear of the house.
- There was a 24 hour period where the tenant’s bathroom was not useable. There was some noise, dust and having to work around workmen and their tools, which is part and parcel of living with maintenance work being carried out.
- I find that 1 weeks’ rent would be fair compensation to the tenant for the interruption to her use and enjoyment of the premises. Use of premises for an unlawful purpose
- The landlords claim exemplary damages for what they say was the tenant’s use of the premises for the unlawful purpose of cultivating and smoking cannabis.
- The tenant has acknowledged having previously smoked cannabis on the premises for medical reasons, but without prescription.
- During the hearing on 15 November 2023 it was made clear that as smoking cannabis is illegal, doing so on the premises is a breach of the tenant’s obligation under s.40(2)(b) not to, “...use the premises, or permit the premises to be used, for any unlawful purpose.” Breach of s.40(2)(b) is an unlawful act for which exemplary damages of up to $1,800.00 may be awarded.
- The tenant’s evidence is that while she continues to smoke cigarettes on the property (not inside the premises), she has not smoked cannabis on the property since that November 2023 hearing.
- That contrasts with the evidence given by Mr Malot, whose statement says, “Throughout the job we would often smell marijuana in the air and towards the end of the job I was painting the front fence when I smelt a strong odour of marijuana coming from the property. I peered through the hedge and saw the tenant out the back of the house smoking a joint. Not long after the tenant put her kids in the car and drove off. I informed [the landlord] about this."
- Under cross examination, Mr Malot confirmed that he is well aware of the smell of marijuana smoke and having smelled it strongly and having then seen the tenant smoking, he assumed that is where the smell was coming from.
- That is strongly circumstantial evidence and I have no doubt about the genuineness of the conclusion formed by Mr Malot. However, there are other possible explanations and only the tenant can give direct evidence about the issue. She has given direct evidence under promise and has denied the allegation under examination.
- I am not prepared to find that the tenant gave false evidence about the matter.
- Mr Malot’s statement also says, “The first day we visited the property there was a marijuana plant about a metre tall sitting in a pot around the back of the house.”
- That evidence was corroborated by evidence from the landlords, who say they believed the tenant’s former partner might be smoking cannabis at the property but were not too concerned about it but were not prepared to put up with cannabis growing on the property.
- The tenant does not deny that the marijuana plant was there. She says it was not her plant but a plant she was minding for a friend.
- I find that the tenant’s decision to “mind” her friends cannabis plant, means that in breach of her obligations under s.40(2)(b), she has, “...allowed the premises to be used for an unlawful purpose.”
- In doing so she has intentionally committed an unlawful act under the RTA.
- Where a party has committed an unlawful act intentionally, the Tribunal must consider whether or not an award of exemplary damages would be just, taking into account the criteria under section 109(3). Those criteria are: “(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”
- I accept the tenant’s evidence that her intent was to help a friend.
- In terms of the effect of the tenant’s decision, the tenant says that the plant has been returned to its owner and there are no longer any cannabis plants present on the premises.
- There has been no direct and adverse impact on the landlords, but it has created another difficult issue for them to deal with, which in the context of the parties’ relationship, is not insignificant.
- There is an obvious public interest in tenants respecting their obligation not to use the premises for unlawful purposes.
- In this situation, where concerns about the premises being used for smoking cannabis had already been raised and addressed by the Tribunal, the tenant’s decision to allow a cannabis plant on the premises is difficult to understand.
- In those circumstances I do consider it would be just to make a modest award of exemplary damages. Unlawful subletting
- Section 44(1) to (3) provides that: “There may be included in a tenancy agreement a provision that expressly and unconditionally prohibits the tenant from subletting or parting with possession of the premises during the term of the tenancy. (2) In the absence of such a provision, the tenant may at any time during the tenancy sublet or otherwise part with possession of the premises with the prior written consent of the landlord and in accordance with any conditions attached to that consent by the landlord. (2A) A tenant commits an unlawful act if he or she sublets or otherwise parts with possession of the premises—(a) in contravention of a provision of the kind described in subsection (1); or (b) in any other case, without the prior written consent of the landlord. (3) The landlord shall not withhold that consent unreasonably, nor attach any unreasonable conditions to it.”
- The tenant had to go to Germany for family reasons on short notice at the end 2022. She contacted the landlords, “I have for the coming three to four weeks neighbours monitoring and taking care of the house gardens and chickies... Over Christmas and New Years my friends family staying with their parents from the UK to ‘house sit’ and spending their family holiday in Napier to help us with costs /getting missing funds together for our return flights From January till we come back in March I'll sub-lease/ rent out the two rooms [the tenant’s former partner] won't need when coming back in January some time also to a friend and her two kids that's relocating from Christchurch. I'm working on getting details all gathered for you and will pass yours/ details onto Caroline two. Very sorry leaving it all last minute however house and payments will be all sorted and I just hope everything will be perfectly fine.”
- On 1 February 2023 the tenant a text the landlords, “Happy New Year to you guys too. I hope you are all well. I'm so sorry I've not been in touch to keep you updated. It's been is a difficult time for us. I'm still in Germany with the kids and only using Wi-Fi which restricted contact to e-mail Facebook Messenger and WhatsApp/ telegram etc........As unfortunately the sublease I had arranged upfront fell through we had to find someone else for a few weeks to be able to kinda house sit and rent at same time to cover expenses. We have that all sorted and someone staying until 20th February looking after the place and helping paying the bills while we are away. [The tenant’s former partner] will be back will be then from 20th staying at the house as he is back early already. Me and the kids only return end of March.”
- The landlords say that they were disturbed on seeing an advertisement for a letting of the premises. The tenant’s evidence is that that was a localised advertisement looking for somebody to co-occupy the property her with her former partner, as noted in the 1February text.
- I understand the landlords’ point of view that the arrangements they had been led to understand would be in place while the tenant was away, changed without their prior knowledge or consent. The evidence does however persuade me that the tenant initially made efforts to inform and obtain the landlords’ consent before arranging alternative occupation of the premises while she was away. She also later updated the landlords about the change in circumstances.
- There were no adverse consequences of significance for the landlords and the issue does not appear to have been raised as a concern for them until well afterwards, when other difficulties had arisen between the parties.
- In these circumstances I think it would have been difficult for the landlords to have declined consent to the arrangements made by the tenant in terms of the landlords’ obligation not to withhold consent unreasonably (s.44(3))
- For those reasons I do not consider the tenant to have breached her obligations under s.44 to an extent that would make an award of exemplary damages just. Future Work
- The landlords are concerned that there is further work necessary at the premises involving removal of a large hedge and replacement of a boundary fence. Given the criticisms directed at them and difficulties they say were caused by the tenant over previous work and in particular the way the premises were secured, they say that it will be impossible for them to do that work in a way that is satisfactory to the tenant and doesn't result in more difficulty and conflict.
- The landlords ask the Tribunal to make a declaration in advance of any notice being given, that it would not be reasonably practicable for the tenant to remain in occupation of the premises while that work is carried out, so that they would be entitled to issue a notice of termination.
- Section 51(2)(f) allows landlord to terminate a tenancy on 90 days’ notice where: “extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and—(i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.”
- While I understand the landlords’ trepidation about how to manage the upcoming work with the tenant in occupation, it would not be proper for the Tribunal to make a decision about whether a notice of termination is lawful in advance of that notice being given. More specific evidence would be required about the nature and extent of the work required, start dates, expected duration, what practical arrangements could be made for it to be feasible for the tenant to remain in occupation, the possibility for the tenant being able to have alternative accommodation for a period if requires so that the tenancy could continue beyond completion of the work and so forth.
- It is not at all clear to me on current evidence that the upcoming works should be considered, “....extensive alterations, refurbishment, repairs, or redevelopment...”
- That application it is therefore declined.
- As each party has had claims upheld, no Order is made regarding the filing fee.