Published tribunal order
Tenancy Tribunal case 4686931 — Property damage at [Street address], Glenfield, Auckland 0629
Decided 24 May 2024 · Published 24 May 2024 · Application 4686931
- Property damage
- Rent arrears
Party names are redacted in the official published order.
Order
- The parties’ names and identifying details, including the tenancy address, must not be published.
- The Bond Centre is directed to release the bond to the tenant immediately.
- [The landlords] must pay [the tenant] $2,358.54 immediately, calculated as shown in table below.
- The claims are allowed as set out in this order and
Reasons
. All other claims are dismissed. DescriptionLandlordTenant Rent arrears to 1 December 2023$75.71 Exemplary damages for harassment $1,500.00 Exemplary damages for unlawful notice Refund – gate remote $1,500.00 $50.00 Damage to heater$150.00 Gate repair – welding rods$465.75 Total award$691.46$3,050.00 Net award $2,358.54 Bond $2,120.00 Total the landlords must pay the tenant $2,358.54
REASONS:
- All the parties attended the hearing.
- The hearing was resumed from the original hearing on 14 December 2023, which was adjourned due to a bomb threat.
- The tenant claims the landlords interfered with his reasonable peace, comfort, and privacy to the aggravated level of harassment, altered a lock without consent, and issued him with a retaliatory termination notice. He seeks exemplary damages.
- The landlords claim for rent arrears and compensation for the cost of repairing damage. Background
- The tenancy premises is a two-bedroom granny flat. The flat is on the ground floor. The landlords, who own the property, live with their daughters in the residence above the flat.
- The tenancy was for a fixed term of one year beginning 7 March 2023. However, the parties fell out and the tenancy ended by mutual agreement on 1 December 2023.
- The parties all have origins in Fiji. The landlords have lived in New Zealand for many years. However, the tenant was newly arrived from Fiji. To begin with, the parties were on friendly terms. However, the parties fell out and the relationship became hostile.
- The tenant says that the male landlord regularly came to the flat uninvited and speak crudely and disrespectfully. He says on one occasion, the male landlord came into the flat and sneaked up behind him. He believes the landlords monitored where he was in the flat, would hover around his windows interfering with his privacy, and were very directive of what he could do in the premises.
- When the parties fell out, they allege other party deliberately banged on the floors/ceiling to disturb each other.
- The tenant also complains the landlords left sandbags and timber outside his door which obstructed his access.
- On 29 June 2023, the tenant issued the male landlord with a 14-day notice for coming to the flat without 48 hours’ notice, to refrain from using foul language in his presence, and to remove sandbags and other items from the back pathway.
- The tenant says the landlords later interfered with his mail and did not permit his mother to stay with him in the unit when she visited from Fiji.
- In early September 2023, the landlords installed an electronic driveway gate, which the tenant helped install. The tenant says the landlords never gave him a remote to open the gate. On 15 September 2023, the tenant came home to find the gate locked. He moved the gate off its rail to get into the premises.
- The tenant immediately lodged a claim in the Tribunal after this incident, claiming the landlords had unlawfully added a lock without his consent.
- A few days later, the landlords issued the tenant with a 14-day notice alleging he had damaged the gate and motor and requiring him to replace the gate and fix or replace the gate’s motor.
- On about 27 October 2023, the tenant’s mother came to New Zealand from Fiji, intending to stay with her son until Christmas.
- The landlords say that on 27 October and 29 October 2023, they were repeatedly woken by loud knocking noises on the flat’s ceiling, which can only have come from the tenant deliberately wanting to disturb them.
- On 30 October 2023 and 1 November, the landlord issued the tenant with notices stating that the tenant’s mother’s presence in the flat was in breach of the tenancy agreement and to “get rid of the extra person/persons from your flat”.
- On 2 November 2023, the landlords issued the tenant with a 90-day notice terminating the tenancy on the ground that the landlords required the flat as a principal place of residence.
- The personal friction between the parties worsened. Police attended the property on three occasions to deal with altercations between them.
- The issues for determination are: a. Did the landlords harass the tenant? b. Was the landlords’ notice retaliatory? c. Did the landlords alter a lock without the tenant’s consent? d. What is owed for rent? e. Is the tenant liable to the landlords for damage? 1 1 The landlords had claimed for the cost of water, but they abandoned this claim.
Did the landlords harass the tenant?
Legal principles
- Section 38 of the RTA provides: 38 Quiet enjoyment (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. (3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.
- In summary, landlords must not: a. Interrupt the tenant’s quiet enjoyment of the premises; or b. interfere with the tenant’s reasonable peace, comfort, or privacy of the tenant in their use of the premises: s 38(2) of the Residential Tenancies Act 1986 (RTA).
- Breaching the second 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. 2
- 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.
- Black’s Law Dictionary 3 defines “harassment” as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
- The New Oxford Dictionary of English“ 4 defines “harass” as: subject to aggressive pressure or intimidation”. 2 RTA, s 38(3) and Schedule 1A. 3 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 4 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998). Discussion
- The landlord repeatedly went to the flat, typically, to fix a sink problem. He did not give notice. The tenant consented to the visits but was increasingly irked by the landlord’s language and disrespectful comments. He eventually issued the landlords a 14-day notice about this.
- I am not persuaded that the male landlord’s unannounced visits to the premises were an interference with the tenant’s reasonable peace. Landlords may enter premises with the tenant’s consent. Early on in the tenancy, the parties’ relationship was friendly, so it is probable the landlord genuinely believed the tenant’s consent was happily given. The landlord was overfamiliar in the beginning, but it was not proven the conduct continued after the 14-day notice.
- The tenant says the landlord sneaked into the flat and surprised him. However, the landlord says he did not go into the flat on that occasion. I am not persuaded on the balance of probabilities that the landlord did enter the premises without consent.
- Nor do I find it proven that the landlords breached s 38 by unnecessarily lurking nearby the tenant’s windows. The landlords lived above and had legitimate tasks to do on the property. It has not been shown their landlord’s actions were improper in this regard. The tenant felt the landlords were monitoring when he used the bathroom, for example. I find that unlikely.
- The parties accuse each other of making noise intended to disturb them. There could be some truth to both party’s allegations, but there is no objective evidence about the noise. I can only rely on the parties’ evidence, but that is infused with the hostility and hurt that each inflicted and endured. I cannot gauge the level of noise, the number or occasions, or its duration. It is reasonably possible that the noise events were isolated and minimal. I do not find the tenant’s claim of breach in this regard proven.
- The landlords accept they put some of the tenant’s mail on his doorstep. They say there was no malice in doing so and are surprised the mail got rained on. I am not satisfied that the landlords actions were malign of that they amounted to an interference with the tenant’s peace in the circumstances.
- The landlords were not well disposed to the tenant’s mother because they considered that the tenant’s mother was also involved in making noise and making offensive comments about them that she knew would be overheard.
- On 30 October 2023, the landlords sent the tenant a notice giving the tenant 24 hours to remedy having “additional individuals residing in your flat”.
- On 1 November 2023, the landlords gave the tenant a 14-day notice to get “rid of the extra person/persons from your flat”. The landlords were well aware that the “extra person” was the tenant’s mother.
- The landlords’ notices were not valid. The tenant’s mother was only going to be staying with the tenant for a short period after which she would return to Fiji. The tenant was fully entitled to have his mother stay with him as a guest.
- To purport to restrict the tenant from having his own mother stay with him in this way was both a serious interruption to the tenant’s quiet enjoyment of the premises and an interference with his reasonable peace, comfort, and privacy.
- I consider also that the landlords’ actions reach the aggravated level of harassment under the Act. The notices served no legitimate purpose and caused the tenant substantial emotional distress. They amounted to aggressive pressure and intimidation.
- I find it proven on that the landlords committed the unlawful act of harassment. Exemplary damages
- Exemplary damages are designed to punish and to deter. 5 They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 (CA) Cooke P said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in s 109 of the RTA. Section 109 of the RTA confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
- I am satisfied the landlords’ breach was intentional. 5 See for example, Gao & Jeyasingham v Landlord [2022] NZTT 4329775, 4328263 para 61 ffg.
- The unlawful act was a serious intrusion into the tenant’s personal life. It would have been distressing for the tenant to endure having his mother treated in this way.
- It is in the tenant’s interests that the breach is vindicated by an award of exemplary damages.
- The public interest warrants an order to punish the landlords and deter other landlords from similar breaches.
- It is just to make an award.
- Having regard to the matters discussed I set exemplary damages at $1,500.00 in this case, which is one-half of the maximum amount available. Was the landlords’ notice retaliatory or invalid?
- On 2 November 2023, landlords suddenly gave the tenant notice when the acrimony between the parties was at its worst.
- The tenant had brought proceedings against the landlords three months earlier. The landlords had filed their own proceedings on two months’ previously.
- The tenancy was for a fixed term. Notice cannot ordinarily be given to end a fixed-term tenancy. Legal principles
- Giving a termination notice which is declared to be retaliatory is an unlawful act. 6
- Moreover, the landlord commits an unlawful act if they give or purport to give a notice to terminate knowing that they are not entitled to give the notice. 7
- If either of these unlawful acts are proven, exemplary damages may be awarded up to a maximum of $6,500.00. 8
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord: s 54(1) of the RTA.
- To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate. 6 RTA, s 54(2) and, (3). 7 RTA, s 60AA. 8 RTA, Schedule 1A.
- The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
- The tenant in this case submits a relevant “thing” was the tenant exercising her right to ask the landlords to correct the premises non-compliance with the HHS.
- A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory.
- A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 9 Discussion
- The landlords were probably primarily motivated to give the tenant notice because they felt the relationship had become “toxic”.
- The tenant’s proceedings in the Tribunal were symptomatic of the breakdown in the relationship.
- I am not satisfied on the balance of probabilities that the landlords were wholly or partially motivated by the fact the tenant was exercising his tenant rights. The parties’ living circumstances had become so fraught it is probable the landlords wanted to end the tenancy for reasons other than the tenant exercising his rights.
- However, the landlords’ notice itself is invalid on its face. It states: The Residential Tenancies Act 1986 requires me to five you at lease 63 days’ notice to terminate the periodic tenancy for the following reason: ... The owner of the premises requires the premises...as the principal place of residence for the owner or a member of the owner’s family... (Emphasis added)
- The landlords say they got advice from Tenancy Services confirming that they could give the notice. However, the notice is obviously invalid because it states that the tenancy is a “periodic tenancy” when the landlords knew full well that the tenancy was a fixed-term tenancy. 9 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
- Talking to Tenancy Services does not inoculate the landlords from unlawfulness. I have no evidence of the dialogue. Tenancy Services could only give advice based upon what it was told. Its advice was probably correct based on what details it was given. It is unlikely to have recommended giving the tenant an unlawful notice. I find it probable the landlords did not provide Tenancy Services with all the relevant details.
- To be valid under s 51(1)(a) of the RTA, the landlord has to need the premises “as the principal place of residence”. However, I also find it more probable than not that the landlords did not require the premises for a family member as they claim. Rather, the reason given that they required “the premises...as the principal place of residence for the owner or a member of the owner’s family” was a pretext. The landlords could use the premises for that purpose, but they did not need to. They just gave that reason to get rid of the tenant.
- I find it probable that the landlords carefully explored lawfully ending the tenancy. They knew that the notice they gave the tenant was invalid.
- I find it proven that the landlords knowingly gave the tenant an unlawful notice. Exemplary damages
- The landlords committed the unlawful act intentionally. They wanted to end the toxic environment they were experiencing with the tenant living below. The relationship had begun on the best of terms but ended on the worst of terms.
- The effect of the unlawful act was that by an underhand process, the tenant had to move out.
- It is in the tenant’s interests that the Tribunal orders exemplary damages to vindicate the breach against him.
- The public interest favours an award of exemplary damages at appropriate level because landlords should be punished for issuing unlawful termination notices and landlords in general should be deterred from similar conduct by knowing that it will be met with an award for exemplary damages.
- The Tribunal orders the landlords to pay exemplary damages of $1,500.00 for the unlawful notice. Did the landlords alter a lock without the tenant’s consent?
- A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. 10
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. 11
- I am not satisfied that the landlords’ installation of the automatic gate was without the tenant’s consent.
- The tenant helped install the gate, so knew about the installation and did not object.
- The tenant has not proved the landlord’s beached its duties under the section.
- This claim is dismissed.
- However, the tenant paid the landlords $50.00 for a garage remote, which he never received.
- The landlords must repay the tenant the $50.00.
How much is owed for rent?
- The landlords provided rent records and the tenant gave evidence about how much rent he had paid.
- For the reasons mentioned in The Tribunal’s interim decision dated 15 December 2023, the Tribunal finds the tenant owes the landlords one day’s rent.
Is the tenant liable to the landlords for damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. 12 10 RTA, s 46(1) and (2). 11 RTA, s See section 46(3) and Schedule 1A. 12 RTA, ss 40(2)(a), 41, and 49B.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. 13
- During the tenancy, a new wall heater panel was cracked. The tenant says he does not know how the damage occurred. The damage would have required the application of significant force. I do not find it proven that it is more likely than not that the tenant did not carelessly or intentionally cause or permit the damage.
- The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
- A replacement heater will cost about $190.00. The tenant is to pay the landlords $150.00 for this having regard to betterment and depreciation. The landlord should be returned to the position they would have been in had the damage not occurred and should not be better or worse off.
- Soon after the automatic gate was installed, the tenant found himself locked out. He could have entered the property taking a different route or asking the landlords to let him in but instead took the gate off its tracks. In doing so he damaged two of the gate’s metal rods.
- I am not persuaded on the balance of probabilities that the tenant was reasonably prudent in the way he forced the gate open.
- The landlords should have ensured the tenant was not locked out, but the tenant could have gained entry by other means that did not involve damaging the gate.
- The landlords paid $465.75 for the gate to be repaired. The Tribunal orders the tenant to pay the landlords that amount.
- The landlords claim the tenant also damaged the gate’s motor. However, I do not find that proven. There is a quote to repair the motor, but it has not been repaired. The tenant says he disengaged the motor before forcing the gate open. The landlords did not provide expert evidence to show the probable cause of damage to the motor, but only a quote for a new motor.
- I am not satisfied on the balance of probabilities that the tenant damaged the motor.
- This part of the landlords’ claim is dismissed. 13 See Guo v Korck [2019] NZHC 1541. Non-publication
- The parties seek orders for non-publication.
- 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. 14
- Both parties have substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified by the parties’ conduct or any other circumstances of the case.
- Non-publication of the parties’ names and identifying details including the tenancy address is ordered.