What was Tenancy Tribunal case 4712709 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,500.00 immediately.

How much money was awarded in case 4712709?

Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4712709?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4712709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9618033-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4712709 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,500.00 immediately.

How much money was awarded in case 4712709?

Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4712709?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4712709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9618033-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4712709 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4712709 — net $1,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$1,500.00	Exemplary damages
Net award	$1,500.00
Total payable by Landlord to Tenant	$1,500.00

Claims and awards in Tenancy Tribunal application 4712709 — net $1,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$1,500.00	Exemplary damages
Net award	$1,500.00
Total payable by Landlord to Tenant	$1,500.00

Order

[The landlord/s] must pay [The tenant/s] $1,500.00 immediately.
The notice of termination issued by the landlord to the tenant is declared to be retaliatory and of no effect.
The application against [The property management company] is struck out.
[The landlord/s] is joined as a landlord party to the application.
All other applications are dismissed.

Reasons

All parties attended the hearing on 2 November 2023.
At the commencement of the hearing, the Tribunal joined [The landlord/s] as a party to the proceedings in his capacity as landlord (“the landlord”).
I record that [The property management company] has at all times acted as the agent of the landlord. That was recorded in the Tenancy Agreement. As the proceedings developed it became clear that the property management companies’ involvement was only on the periphery. The Tribunal orders that the application against the property management company be struck out.
The tenancy commenced on 25 January 2023 and is a fixed term tenancy through until 22 January 2024. The tenancy relates to a property at [Tenancy address suppressed] (“the premises”). Tenant Claims
The tenant seeks the following orders; o A declaration that the notice of terminations is retaliatory and of no effect. o Exemplary damages in regard to that notice. o Exemplary damages for a breach of the tenants’ quiet enjoyment. o Reimbursement of the filing fee. General Law
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
In this matter the onus or job of proving the claims fall on the tenant.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision. Retaliatory Notice
The tenants were served with a notice to terminate the tenancy dated 9 October 2023 by [The property management company]. The notice provides that the landlord and his family wished to reclaim the premises to use it as a principal place of residence. The notice was given pursuant to s.60A (2)(d) RTA. The notice would result in the tenants’ fixed term tenancy ending on 22 January 2024.
The tenants say that the giving of the notice to terminate the tenancy by the landlord was retaliatory.
Section 54 of the Residential Tenancies Act 1986 (“RTA”) provides; (1)Within [28] working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 [(or, in the case of a boarding house tenancy, section 66U)], the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2)If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3)The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.”
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right (see Ibrahim v Barfoot & Thompson Henderson TT 662/95, 30 November 1995), where a notice to terminate the tenancy was given the day after unsuccessful mediation regarding maintenance of a swimming pool. This was held to be clearly retaliatory.
The notice to terminate must have been given in a direct response to the tenant asserting some right: Bregman v Todd DC Auckland TT 784-5/88, 8 December 1988. But it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting some right.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions.
The facts as they relate to the retaliatory notice claim are not substantially in dispute between the parties.
The landlord said that the premises had been in his family for 4 generations.
The premises have been rented out to various tenants over a period of approximately 16 years.
The premises consist of a one-story house on a 547 m2 section. Close to the house are 2 small cabins. The tenants’ said that the cabins were four metres from the house.
In each tenancy agreement prior to the current one, the landlord retained the right to use the cabins periodically during the course of the tenancy.
Discussions between the landlord and his property manager prior to the commencement of this tenancy resulted in the landlord’s right to use the cabins at the premises being removed as a term of the tenancy.
It was clear that the landlord was no longer entitled to use the cabins during this tenancy.
During the course of the evidence the landlord explained that his wife had health issues over a long period of time. The landlord and his family had used access to the cabins as an escape. The considered that the quietness and view of the night sky assisted in their overall wellbeing.
The landlord explained that during the current tenancy, the family had tried alternative vacation accommodation, but that none of them had provided the solace they received from the use of the cabins.
On or about 10 September 2023, the landlord approached the tenants and asked if he could have periodic use of the cabins. The evidence was not precisely clear on the amount of use requested by the landlord. Irrespective of that uncertainty, the tenants declined the request.
The property manager gave evidence that she spoke to the landlord after his visit to the premises. The landlord said that a notice of termination was to be issued as he intended to use the property for himself and his family.
That notice was issued to the tenants.
The first issue that I must consider in deciding this matter is whether the tenants had asserted some right.
I have no difficulty in finding that the tenants, in denying the landlord access and use of the cabins, were simply exercising their right to the sole occupancy and quiet enjoyment of the premises without interruption from the landlord.
Having come to the conclusion that the tenant was asserting a right, was the notice to terminate given in direct response to the tenant asserting that right? It does not have to be the landlord’s sole motivation, but the landlord must at least be partially motivated by the tenant asserting that right.
It is clear to me that but for the tenant denying the landlord the right of access to the cabins, no notice of termination would have been issued by the landlord. The landlord said in evidence that the tenants were good tenants and that he had hoped that they would remain at the premises long term. During the hearing, the landlord proposed to the tenants that they could stay at the premises if he could have use of the cabins for a specified period. The offer was declined. I consider that at a minimum, the landlord has been at least partially motivated to end the tenancy by the tenant’s refusal to let him have use of the cabins.
As the landlord has been at least partially motivated by the tenant asserting their rights, I find that the landlord has issued a retaliatory notice.
Section 54(2) RTA provides that the Tribunal on making a finding that a notice of termination is retaliatory shall declare the notice to be of no effect unless the Tribunal is satisfied that the exercise of a right by the tenant was vexatious or frivolous. I do not consider the right relied on by the tenant to be vexatious or frivolous. The use of the word “shall” in the section makes this requirement mandatory.
The notice is declared to be retaliatory and invalid.
The giving of a retaliatory notice is an unlawful act (s.54(3) RTA).The tenant seeks exemplary damages. The maximum award of exemplary damages under the RTA for this unlawful act is $6,500.00.
I find that the landlord in giving a retaliatory notice has committed an unlawful act.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
The effect of the unlawful act has been to cause the tenants a great deal of stress. They made it clear at the hearing how much they had enjoyed living at the premises.
It is in the interests of these particular tenants and tenants generally, to be protected from the issue of retaliatory notices by landlords. The fear of this occurring will often cause tenants not to pursue their rights.
Having said that, in setting an appropriate level of exemplary damages, I take into account that I am not aware of any previous breaches by this landlord and the landlord has acted in what he considered to be the best interests of his family. Having taken all of those factors into account, I consider an award at the lower level of damages available is appropriate and $1,500.00 is awarded to the tenants in exemplary damages. Quiet Enjoyment
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.
The landlord has entered onto the tenanted land on at least three occasions during the term of the tenancy. The landlord’s evidence was that on at least one occasion, he informed [The property management company] of his intended visit. That message was not passed to the tenants.
A tenant’s rights under this section are subject to the landlord’s rights as long as those rights are exercised reasonably and do not unduly impair the tenants use.
Section 48 RTA provides that a landlord may not enter the premises during a tenancy, except with the consent of a tenant or having given the appropriate notice. Importantly, s.48(7) RTA provides that the section does not apply to land or facilities. The tenants confirmed in their evidence that the landlord only ever entered the land and as such s.48 RTA does not apply to the landlord’s actions .The three visits during the term of the tenancy are not sufficient in my view to amount to an unreasonable interference by the landlord in the tenants’ quiet enjoyment. The application is dismissed.
All parties have applied for name suppression.
[The property management company] has been struck out as a party and accordingly has been wholly successful. The name and details of [The property management company] are suppressed.
The tenants and the landlord have achieved an equal degree of success in this matter and so both could be said to have been substantially successful. In those circumstances, I order suppression of the landlord and tenants’ names and details. In those circumstances I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 4712709 — Exemplary damages

At a glance

Tenancy Tribunal case 4712709 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions