Published tribunal order
Tenancy Tribunal case 4688531 — Rent arrears
Decided 21 Dec 2023 · Published 21 Dec 2023 · Application 4688531
- Rent arrears
- Property damage
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details. 2. 3.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenants have sought exemplary damages for breaches of unlawful termination, harassment, and unlawful entry by the landlord. Background
- The tenancy commenced on 24 September 2021, for a fixed term of one year. The parties renewed the tenancy on 24 September 2022 for a further year. The lease was signed by the tenant and her husband.
- On 20 May 2023, there was a scheduled inspection (the inspection). The landlord attended this inspection with his brother, mother-in-law, and his two teenage children.
- On 15 June 2023, the landlord gave notice that he did not intend to renew the tenancy at the end of the fixed term, as he intended to move into the house with his family.
- On 25 June 2023, the tenant emailed the landlord advising that she had found another property to rent and giving three weeks’ notice of the intention to move out. She also advised that she would not pay rent from that date and that the rental arrears would be paid from the bond.
- The landlord replied on 26 June 2023, stating that 28 days’ notice would be accepted but that weekly rent needed to be paid on an ongoing basis. There was no response to this email and there followed a number of calls and texts to the tenant. When these were not responded to the landlord texted the tenant’s husband, repeating the offer of accepting four weeks’ notice. On 26 June 2023, the tenant’s husband responded, “okay will give you 4 weeks”.
- On 4 July 2023 at 11:32 am the landlord emailed the tenant asking to meet to discuss the overdue rent and the last day of the tenancy. The email says “I will be at [the tenancy] at 5 pm to discuss...” At approximately 4:30 pm that same day the landlord visited the tenancy in the company of an associate. They went onto the property and knocked on the door. However, the tenant would not let the landlord enter the premises. The landlord stood on the doorstep and offered to extend the tenancy for 6 months. It appears that the tenant’s husband took exception to the visit and words were said.
- On 5 July 2023, the landlord emailed the tenant repeating the offer of a six-month extension and advising that he needed to rent a house in the meantime as he could not afford the mortgage with the house vacant. The email also advises that a property manager would visit the house to take photos in order to advertise the property for rent.
- Following this there were a number of emails sent by the landlord to the tenant following up the rent arrears.
- The landlord vacated the premises on the 16 July 2023. An abusive message to the landlord was written on the front path in chalk.
How much is owed for rent?
- The tenant says that she should only be charged 3 weeks rent, as her husband’s agreement to pay for weeks was done without her knowledge. She says that she was the tenant making the decisions and communicating with the landlord. However, the tenant’s husband is named on the lease and is a party to the lease on a joint and several basis. As such he has the standing to agree to a variation around the term of the lease. The landlord was able to rely upon the husband’s agreement. Therefore, the tenancy ended on 16 July 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy was $2828.57. I order that $2828.57 is paid to the landlord for rent arrears.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
- The majority of the tenancy was left in a reasonably clean and tidy state. However, the range hood and oven were not cleaned. The tenant admitted that she had not cleaned these two areas. Photos were provided showing that the range hood and oven required cleaning. The landlord had the oven and rangehood cleaned at a cost of $50. This is a reasonable amount for this work and I order that this will be paid to the landlord. The landlord has also claimed $50 for vacuuming the house. However, the tenant says she vacuumed the house and there is no evidence to show that the house needed to be ready vacuumed. Therefore, I will not order the costs or for vacuuming.
- The landlord has sought $150 for mowing the lawns at the property. Photos have been provided showing that the lawns and gardens were overgrown and did need to be mowed. However, the tenant’s evidence is that the lawns were in a similar state at the start of the tenancy and there are no photos showing their condition at that time. A tenant is not required to leave a property in better condition than when they took possession, therefore, I cannot award the lawn mowing costs.
- The Landlord has alleged that only one set of keys was returned and seeks the costs of replacing the locks. However, the evidence is that the tenancy started with only one set of keys, it was accepted by both parties that a second front door key was provided by the landlord several months after the tenancy began. However, the tenant advised that one of the two front door keys broke in the lock, was not replaced, and the landlord was advised of this during the Inspection. I do not accept that the replacement of the locks was necessary. Therefore, I cannot award this cost.
- The landlord has also sought $150 for the cost of removing and disposing of goods left by the tenant at the premises. A photo was provided showing these items; washing machine, a bookcase, and a lounge set, which were left on the berm in front of the house. These were removed a week after the property was vacated. The tenant’s evidence was that she had texted the landlord advising that she would pick these up as soon as possible, and that she had been unable to move them as at the time of the move her children were unwell with covid. When she visited the Saturday following when she moved out the goods had orally been removed.
- The landlord had reasonable notice of the tenant’s intention to remove the goods. Rather than texting or communicating with the tenant about removing the goods, the landlord took upon himself to have them removed. Subsequently I do not find that the costs related to the removal of the goods are justified. Counter-claim Harassment
- claims the landlord has harassed them.
- The events which give rise to the tenant’s claim were the landlord’s visit on 4 July 2023, which occurred with inadequate notice, and the family members presence during the inspection.
- 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.
- 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. See section 48(1) and (2) Residential Tenancies Act 1986. Discussion
- The landlord brought four family members to the inspection. While there was appropriate notice of the inspection, no notice of the attendance by family members was given. The tenant’s evidence was that she and her children felt intimidated and unsettled. The landlord has said that he wished to show his house to his brother and mother-in-law who were visiting from overseas. However, as I pointed out during the hearing his relationship with his tenant is governed by the requirements of the Residential Tenancies Act 1986, and by the fact that his house is the tenant’s home. There was no legitimate reason for the family members to be present.
- The landlords visit on 4 July 2023, did not involve the landlord entering the premises. Instead, the discussions occurred with the landlord standing on the front path. While the visit was unsettling for the tenant, a breach of section 48 requires that the landlord has entered the premises, which did not occur.
- 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. See section 109(3) Residential Tenancies Act 1986.
- Considering these events, I note that the incidents occurred two months apart and were markedly different events. The first was a legitimate inspection, albeit with elements which were unsettling. The second was more concerning behaviour, being a visit with inadequate notice, with the intention of trying to persuade the tenant to change the agreement about when the tenancy would end. However, I note that the landlord did not enter the house. These 2 events were of a different nature, so do not constitute a pattern of behaviour, and therefore were not harassment in terms of the act.
- However, while the landlord’s actions do not reach the level of harassment, each incident was of a nature which would have justified exemplary damages if the behaviour had been repeated. The effect of each incident on the tenant was unsettling, therefore, I will consider whether general damages are justified.
- The Tribunal in Palmer v Housing New Zealand (No 2) 1 held that when assessing the quantum of general damages, the Tribunal must take into account the following factors: A. The nature of the breach; B. The duration of the breach; and C. The effect of the breach on the party.
- In Birch v Otautahi Community Housing 2 R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”.
- In Tenant v Ezy Rentals NZ Ltd 3 the Tribunal used Otautahi, as a reference and considered bands of awards, as follows: a. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00 1 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 2 Birch v Otautahi Community Housing [2020] NZDC 17667 3 Tenant v Ezy Rentals NZ Ltd [2022] NZTT 4323927 at [19]-[23] b. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. c. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.
- Considering these factors, I observe; a. Both incidents were breaches of the tenant’s right to quiet enjoyment of the premises. The inspection was an intrusion into the tenant and her family’s privacy, by having a number of strangers enter and move through her home, while she and her children were present. The visit was an attempt to have the tenant change her mind, occurred with insufficient notice, and exacerbated the tensions between the tenant and the landlord. b. The breaches were brief, and each was a single instance of behaviour. c. The effect of the breaches was to unsettle and cause distress to the tenant and her family.
- Following the Ezi Rentals NZ approach I consider that general damages at the lower end of the scale are appropriate and make an award of $500 for both instances. Unlawful termination
- The tenant claims that the landlord has breached their obligations under section 60AA, by terminating the tenancy without legitimate grounds. Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- The landlord gave notice of termination on the basis that they were intending to occupy the home themselves. However, the home was later advertised on Facebook. The tenant alleges that the notice of termination was given under false pretences and was therefore unlawful.
- However, at the hearing the landlord explained that he had, in fact, moved into the house on the intended date 23 September 2023. This occurred after re- tenting the house, as the new tenant decided to terminate early. The landlord has provided evidence of the new tenant ending the tenancy early. I also note that in correspondence with the tenant during the tenancy the landlord had advised that he could not afford for the house to be empty. The correspondence also included a comment that the house needed to be ready to be photographed to advertise for a new tenancy.
- I find that the tenant’s allegations of unlawful termination are not made out.