What was the outcome of Tenancy Tribunal case 4720850?

The tribunal order states: Unless terminated earlier pursuant to Order 2 below, the tenancy of Jesse Lyall

How much money was awarded in case 4720850?

Rent Arrears: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4720850?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4720850?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9715819-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4720850?

The tribunal order states: Unless terminated earlier pursuant to Order 2 below, the tenancy of Jesse Lyall

How much money was awarded in case 4720850?

Rent Arrears: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4720850?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4720850?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9715819-Tenancy_Tribunal_Order.pdf.

Apartment 5, 128 Park Road, Miramar, Wellington 6022 Tenancy Tribunal Case 4720850 — Rent arrears

Claims and awards in Tenancy Tribunal application 4720850. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 7/12/23 Exemplary damages: breach of quiet enjoyment Exemplary damages: insulation & maintenance	$3,600.00		Rent arrears to 7/12/23 Exemplary damages: breach of quiet enjoyment Exemplary damages: insulation & maintenance

Claims and awards in Tenancy Tribunal application 4720850. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 7/12/23 Exemplary damages: breach of quiet enjoyment Exemplary damages: insulation & maintenance	$3,600.00		Rent arrears to 7/12/23 Exemplary damages: breach of quiet enjoyment Exemplary damages: insulation & maintenance

Order

Unless terminated earlier pursuant to Order 2 below, the tenancy of Jesse Lyall Donaldson at Apartment 5, 128 Park Road, Miramar, Wellington 6022 is to terminate and possession is to be granted to GO & SC McGuire Family Trust at 11:59pm on Thursday 11 January 2024.
In the meantime, Mr Donaldson must pay his weekly rent of $600 on or before every Thursday until the end of the tenancy. The next payment is due Thursday 14 December 2023.
If Mr Donaldson fails to pay rent within 2 working days of the due dates as stated in Order 2: a. The tenancy at 128 Park Road, Miramar, Wellington 6022, Apartment 5 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
Payments will be allocated in the following order: rent then rent arrears pursuant to Order 5.
Jesse Lyall Donaldson to pay Go & Sc McGuire Family Trust $2,100.00 rent arrears immediately in accordance with the following table:
All other claims are dismissed.

Reasons

Both parties have filed a number of claims against the other regarding this tenancy which commenced in November 2022. Mr Donaldson filed his application first seeking compensation and/or exemplary damages for alleged failures of the landlords.
Shortly after, the McGuires filed their application for termination and compensation and/or exemplary damages for alleged breaches of the Residential Tenancies Act 1986 (RTA) by Mr Donaldson.
Immediately after the hearing I directed an inspection, the photos of which were filed with me. Both parties were provided with time post hearing to file evidence discussed at the hearing. All the extensive evidence submitted in these claims has been considered, although it may not have been specifically referenced in the decision.
Given the amount of rent arrears at the hearing date, an interim conditional termination order was also made on 4 December to preserve the situation whilst I drafted this decision. Background
This premise is an apartment on top of commercial premises. The McGuires have four commercial tenants who occupy the lower and surrounding buildings, as do they for their business. They all share a driveway, and the property is zoned as a mix of residential and commercial.
When Mr Donaldson commenced this tenancy, he did so with his partner Ms Sullivan. In October she left the tenancy and provided the McGuires with a letter of termination in doing so. They allege this was a letter terminating the tenancy completely and as such Mr Donaldson has been staying on unlawfully.
Ms Sullivan and Mr Donaldson submit that it was just Ms Sullivan leaving and not them both; accordingly Mr Donaldson did not leave. The relationship between the McGuires and Mr Donaldson has been strained ever since and both allege the other is breaching the RTA and their tenancy agreement.
The questions for the Tribunal are therefore: a. Did Ms Sullivan’s notice of 17 October end the tenancy? b. If so what corresponding orders should be made? c. If not, should the tenancy be terminated on another basis? d. What breaches of the RTA and/or tenancy agreement have the parties committed? e. What monetary orders should be made because of those breaches?
Before considering these questions, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof. It is up to the parties to establish their evidence and is not for the Tribunal to extract the necessary evidence.
I refer in this decision to Michelle McGuire as Ms McGuire and Sue McGuire as Mrs McGuire so as not to confuse them. Ms McGuire effectively acted as the property manager and Mrs McGuire, with her husband, are trustees of the landlord trust. The ‘Richard’ I refer to in this decision is Ms McGuire’s husband who works from the commercial premise and was a liaison contact and the builder who did the maintenance needed. The evidence establishes that Ms McGuire and Richard acted as agents pursuant to section 2 of the RTA. Was Ms Sullivan’s notice a valid notice to terminate?
In October Ms Sullivan wished to leave the home and relationship. Ms McGuire provided assistance to her in this regard. On 16 October Ms Sullivan sent an email to Ms McGuire stating that she would be moving out on 22 September and “will be ending the tenancy due to domestic violence and safety concerns.”
Ms McGuire asked her to specify the word “the” as in the “the tenancy” as opposed to “my” tenancy in her termination notice. She also advised her to just make it a general tenancy ending notice as opposed to one on the basis of family violence.
Upon following her directions, Ms Sullivan amended the notice to state “I will be ending the tenancy agreement we had”.
Ms Sullivan says she did not intend to end the tenancy for them both, just for her. She said she made this clear to the McGuires, but they asked her to amend her notice. She says she was trying to leave the tenancy pursuant to section 56B of the RTA which is the provision of the RTA allowing the victim of family violence to leave a tenancy whilst the tenancy continues for the other tenant/s.
Ms McGuire says she just suggested the change to Ms Sullivan because that reduced the amount of paperwork that was required. She is referring to the “qualifying evidence” of being a victim of family violence that is referred to in the section. She says she took this notice as the termination of the tenancy for both tenants, and as such sought for Mr Donaldson to move out as well in line with the notice. Because he did not, she seeks exemplary damages pursuant to section 40(1)(e)(i) and 40(3A)(a) of the RTA as he did not leave when he should have done, and a possession order. The law
In the case of a periodic tenancy, the giving of notice by one of two or more joint tenants has the effect of terminating the tenancy for all tenants.
The leading case in this respect is Hammersmith and Fulham London Borough Council v Monk [1992] 1 All ER 1, a decision of the House of Lords, where the law is explained on both contractual and land law principles. In summary these are that a periodic tenancy is a tenancy that continues for a term that is defined by the ability to give notice at any time. To continue it – that is, not bring it to an end by giving notice, requires the concurrence of both parties as if one party is not prepared to agree in it continuing, then it must come to an end.
Section 214 of the Property Law Act 2007 encapsulates this principal for leases in New Zealand. The Tribunal is not bound 1 by this section for residential tenancies, but it can look to it as a source of applicable principles of law.
Therefore, if Ms Sullivan’s notice is deemed to meet the requirements of the RTA, then it may have ended the tenancy.
Section 51(3) of the RTA requires that all notices to terminate a tenancy shall be in writing, shall identify the premise, shall specify the date by which the tenant is to vacate the premises, and be signed. It also states: In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non-compliance is not such as to mislead or affect unjustly the Interests of the recipient. 1 s.142 of the RTA
I am not satisfied that Ms Sullivan’s notice was a standard tenant termination notice. Firstly, it did not comply with section 51(2B) which requires tenants on periodic tenancies to give at least 28 days’ notice. Secondly, even the re-drafted version related to her leaving only. I consider that her intent to leave the relationship and tenancy for violence and safety concerns was made clear to the landlord both in these notices and in all other communications she had with them. Ms McGuire was involved in Ms Sullivan’s departure and was well aware of her perceived circumstances at the time.
I also find that the landlords dealt with this notice as though it was a s56B notice rather than a standard termination notice. They did not insist upon Ms Sullivan giving 28 days’ notice but rather accepted her 2 days’ notice which is in line with s56B. Further, whilst they did urge Mr Donaldson to specify his leaving date too, they took no steps to enforce the termination, such as applying to the Tribunal, until Mr Donaldson filed his application with the Tribunal.
Intent and knowledge are fundamental elements to any agreement made. I am satisfied that the McGuires knew Ms Sullivan was leaving for the reasons she originally expressed, and as such accepted her sole withdrawal from the tenancy. Section 11 of the RTA allows landlords to waive rights they are accorded under the Act. I find that the McGuires did, in the way they dealt with both tenants, waive their rights to require the documentation stated in s56B, and accepted the termination on those grounds.
Accordingly, I do not find it just to accept Ms Sullivan’s notice as termination of the tenancy and as such the tenancy remains in place. Therefore, Mr Donaldson did not fail to leave when required and that claim must be dismissed.

Should the tenancy be terminated?

In the alternative, the McGuires have applied for termination of the tenancy on the following grounds: a. For breach of the tenancy agreement pursuant to section 56 of the RTA; and/or b. For anti-social behaviour pursuant to section 55A of the RTA; and/or c. For rent arrears pursuant to section 55(1)(a) RTA.
I consider each application separately. Breach of the agreement
The McGuires apply for termination on the basis of breach of the agreement and/or RTA in the following ways: a. By having a dog in the property in breach of the agreement which specifically states no pets. It is not disputed that Mr Donaldson has recently obtained a dog. b. By unlawfully subletting or allowing unapproved guests into the property. c. By preventing their inspections. d. By intentionally damaging the property.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. 2
Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so. I therefore consider each of the alleged breaches and the respective notices. Dog
Mr Donaldson agrees he has a dog which he is trying to get registered as an emotional support dog. He says it has been a lifeline for him with all the difficulties he has recently been facing. Accordingly, he has breached the tenancy agreement.
The McGuires have served a notice on him with respect to this breach on 27 November. The notice does advise of the breach but does not give Mr Donaldson set time to remedy the breach as required. Accordingly, the notice does not comply with the requirements of section 56(1)(b)(1) of the RTA.
Therefore, as the notice was incompliant with the RTA, I consider it would be inequitable to terminate the tenancy for this reason. Other occupants
Mr Donaldson does have a flatmate who was intended to be there short term but has remained and is on bail to the address. This is not in breach of the tenancy agreement which permits three occupants. Mr Donaldson being the sole remaining tenant was entitled to choose whom those two other occupants are and does not need landlord permission to do so. He also does not need permission for guests to stay over on short stays, an issue the landlord has attempted to breach him for.
Mr Donaldson has not breached the agreement or RTA in this respect accordingly, this claim must be dismissed. So too must the landlord’s claim for exemplary damages for a breach of the agreement based on the number of occupants. 2 See section 56(1) Residential Tenancies Act 1986. Inspections
At the inspection on 11 October, Ms McGuire says Mr Donaldson stopped her part way through and did the same to her mother when she attempted an inspection on 20 October. She says he will no longer deal with her and has displayed an aggressive demeanour with them which has made them feel unsafe about being at the property. She also says he locked her out on the 20 th but did allow her parents in.
Mr Donaldson agrees he did stop them at the inspections because they were being overly intrusive. They were going through his drawers and personal belongings which he considered unnecessary. He denies being aggressive but agrees he was upset at the inspection on the 11 th as he considered Ms McGuire had assisted his partner to leave him.
I do not find it established in evidence that Mr Donaldson has prevented the landlord’s inspections. A landlord is entitled to inspect their property pursuant to section 48(2)(b) of the RTA, but should not do so to the extent that it breaches a tenant’s quiet enjoyment of the property. 3 This means that an inspection should not be overly intrusive.
I accept the evidence that Mr Donaldson was upset at these inspections and did impede them. However, he has allowed an inspection since and as such has remedied this breach. Therefore, this claim must also be dismissed. Damage
Tenants are not entitled to damage the homes they occupy. As discussed at the hearing however, if a tenant damages the property, they are entitled during the tenancy to rectify that damage. They are not obliged to use the contractors the landlord wants provided the work is undertaken by a professional, is completed to a workmanlike standard and is returned to essentially the same state as it was previously.
The evidence has established that Mr Donaldson has damaged the property by making holes in walls, using fireworks in the bathroom and cracking the deck. I find that the evidence indicates that the majority of the damage was caused by his careless acts, although some was intentional such as the fireworks. I do not accept Mr Donaldson’s submission that he slipped on the deck and cracked the flooring. I find it more likely than not that he jumped from the railing onto it thereby cracking it. This is careless damage and he is responsible for repairing it although his liability is limited by section 49B of the RTA. 3 Section 38 RTA
However, the tenancy has not yet ended. Accordingly, Mr Donaldson has not had full opportunity to rectify the damage he has caused to the property. Further, he has not been provided with a 14 day notice to remedy that complies with section 56(1)(b)(1) of the RTA. Therefore, it would not be just to terminate the tenancy on this basis.
Given the above, the application to terminate the tenancy for breach of agreement pursuant to section 56 of the RTA is dismissed. Anti-social behaviour
The McGuires in the alternate apply for an order terminating the tenancy on the grounds of anti-social behaviour from Mr Donaldson and his guests pursuant to section 55A of the RTA. They say he has displayed the following anti-social behaviour: i. On 2 November he was seen letting off fireworks from the balcony and roof of the apartment. They say he shot them towards the commercial properties and one of those tenants told them he was also letting them off inside. He has subsequently replaced the vinyl in the bathroom which they submit indicates that the fireworks damaged the vinyl. Supporting this theory are burn marks on the vanity. They issued an anti-social notice on 3 November and the Police were notified. ii. On 18 November one of his guests was not fully clothed and made a scene by screaming in the driveway. They issued an anti-social notice for this on 27 November. iii. Also on 18 November his flatmate urinated on the building. They issued an anti-social notice for this, also on 27 November. iv. He blocked Ms McGuire’s son’s vehicle in, ostensibly to intimidate him. v. On 26 November there was another argument between Mr Donaldson and Ms Sullivan outside the apartment which resulted in her removing her dress in public. The Police were notified. vi. On 26 November he swore at Ms McGuire’s son and allegedly threatened him. An anti-social notice was also issued on 27 November and the Police were notified. vii. He has damaged the apartment extensively. viii. He has undertaken his own repairs to the property even though they specifically told him not to. ix. On 29 November he or his guest verbally sexually harassed a lady walking her dog in the park. The Police have been notified. x. He has thrown cigarette butts (which have been seen on camera) and bottles off the balcony onto the shared driveway. xi. He has a dirt bike at the property which initially leaked oil on the driveway and is being taken up and down from the apartment and ridden noisily through the complex late at night.
Their evidence is that all of this behaviour is concerning and upsetting, particularly as they have commercial tenants at the premise and they themselves and their children visit there regularly.
Mr Donaldson’s response to the allegations is as follows: i. He did let off fireworks but not in a dangerous manner and he did not aim them at the buildings or let them off inside. He is intending to water blast the marks from the drive and building. ii. His guests have apologised for their behaviour as they are both going through difficult times, and it will not be repeated. iii. He has not ever intentionally blocked their vehicles in, but it is a difficult area to park and drive in. iv. He and Ms Sullivan have had, and on occasion do have upsetting disagreements but they are attending communication counselling and going through the Family Court to address them. v. He is repairing the apartment with the use of certified trades. vi. He did not sexually harass anyone. vii. Ms McGuire’s son swore first, and he did not threaten him. viii. Any cigarette butts have been blown from the balcony and he may have dropped one or two bottles but if he has done so he cleans them up. ix. Mr Donaldson’s evidence is that the dirt bike is a project he is working on which is why he needs to test ride it which he does at night to minimise any disturbance. He agrees he is keeping it inside, but says it is not causing any damage. He has ridden it down the stairs which is the safest way to get it down, but not up. He notes that no complaints have been made to the McGuires about the noise.
Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied that: a. on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b. on each occasion the landlord gave the tenant written notice— i. describing clearly which specific behaviour was considered to be anti- social and (if known to the landlord) who engaged in it; and ii. advising the tenant of the date, approximate time, and location of the behaviour; and iii. stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and iv. advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and; c. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
The RTA confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
I am satisfied that the events relating to the fireworks, disturbing behaviour/arguments outside the apartment, damage, and the throwing of items from the balcony all constitute anti-social behaviour in terms of the RTA. However, there are issues with the notices which render them incompliant with the RTA.
Firstly, the 2 nd , 3 rd and 4 th notices were all issued on the same day. These gave Mr Donaldson no opportunity to remedy his behaviour before the next notice was served on him.
Secondly, none of the notices advised Mr Donaldson of his “right to make an application to the Tribunal challenging the notice” which they are required to pursuant to section 55(1)(aa)(11). Accordingly, the formal requirements for the notices set out in s 55A (2) have not been met and as such the application must be dismissed. Rent
It is accepted that at the date of application and at the hearing date Mr Donaldson was more than 21 days in arrears with his rent. He has been suffering considerable financial strain due to personal circumstances. He accepts the debt and to that end has applied for the payment of his Kiwisaver due to extreme hardship. That has not yet been processed.
Accordingly, given the excessive rent arrears, in most situations I would have no choice but to terminate the tenancy or direct a conditional termination. However, Mr Donaldson has made an application for compensation and/or exemplary damages for various alleged breaches of the RTA by the landlord. This application was made prior to the landlord applying for termination. I therefore must consider whether this is a situation of set-off, a principle I explain as follows.
It has long been established that the principle of equitable set-off applies to leases (including residential tenancies). The Court of Appeal in Grant v New Zealand Motor Corporation Limited [1989] 1 NZLR 8 (CA) explains as follows: “The principle is, we think, clear. The defendant may set-off a cross-claim which so affects the plaintiff’s claim that it would be unjust to allow the plaintiff to have judgment without bringing the cross-claim to account. The link must be such that the two are in effect interdependent, judgment on one cannot fairly be given without regard to the other: the defendant’s claim calls into question or impeaches the plaintiff's demand.”
Accordingly, in the Tribunal where a tenant raises a claim or counter based on equitable set-off, there is authority that this should be dealt with before the Tribunal determines whether to make an order or conditional order for termination of the tenancy based on non-payment of rent. 4 A counter-claim may take the form of entitlement to damages, (as here), or it may justify abatement of rent. 5
In this case, I am satisfied that the matters complained of by Mr Donaldson go to what had been contracted for, and what rent was paid for. There is therefore a sufficient link to justify setting-off any successful claim against rent payable.
I do note that this principal of set-off does not justify the withholding of rent however is a factor the Tribunal must consider when deciding an application for termination on the basis of rent arrears.
I have found, as discussed below, that Mr Donaldson is entitled to $1,500 exemplary damages.
The rent is $600 per week. Accordingly, as Mr Donaldson is in excess of $1800 (21 days) rent arrears, even with his set of, I must terminate the tenancy.
I do not consider a final conditional order appropriate as there is no evidence of Mr Donaldson’s Kiwisaver being forthcoming, but more importantly I find it established that he withheld his rent primarily in retribution. There is no evidence that he will not take similar steps again in the future. I have taken into account 4 O'Shea v Brown, High Court Auckland, AP110-PL01, 14 December 2001. 5 Housing New Zealand Corporation v Ladbrook, CIV-2009-009-001805, District Court, Christchurch, 14 September 2009, at [29]. the evidence provided of the financial hardship suffered by the landlords with the rent arrears to date.
I have directed a period of time prior to the tenancy ending to take into account the upcoming holiday period. This is because it will be near to impossible to enforce any termination order made within the two weeks prior to Christmas, it is also extremely difficult to find alternative housing and replacement tenants at this time of year. However, I have also directed a temporary conditional order for rent in the meantime. This means that the tenancy will end on 11 January 2024 unless Mr Donaldson fails to pay his rent in the interim. If he does that, the tenancy will end at that point.
I consider this order in line with the jurisdiction of the Tribunal pursuant to section 85 of the RTA to ensure the fair and expeditious resolution of disputes and to determine disputes with respect to the substantial merits and justice of the particular case. Mr Donaldson’s applications Did the landlord breach Mr Donaldson’s quiet enjoyment?
Mr Donaldson is of the view that the McGuire family have breached his quiet enjoyment of the tenancy extensively and as such seeks compensation and exemplary damages. Specifically, he claims the following: i. The commercial tenants under the property have made considerable noise at all hours of the night disturbing their peace which was of real concern after their son was born. He says he had been advised that a joiner would be moving in, which is what he relied on when he took the tenancy, however the builder and electrician who have in fact moved in are considerably nosier than a joiner would have been. ii. The McGuires came over on numerous occasions without advising them prior, at times coming in without specific invitation. iii. There are cameras positioned around the property that record his movements. He says they reviewed this footage to watch what he was doing and used it to issue him with breach notices. iv. Ms McGuire involved herself in their personal affairs by assisting Ms Sullivan to leave him with their baby. v. The McGuires questioned Ms Sullivan after she had left the tenancy about a car one of his visitors had, thereby breaching his privacy. vi. The McGuires involved themselves extensively regarding the friend he had move in, to the extent that they called First Security and the Police asking about him, and asked Ms Sullivan if she knew him. Essentially, he submits, they were attempting to dictate who could stay with, and visit him. vii. They have served multiple breach notices on him, many of which were not for valid reasons. viii. Richard and other trades used their stairs to access the rooftop on numerous occasions without asking or notifying first. ix. The McGuires withdrew his access to the Wi-Fi and rubbish bins without payment after Ms Sullivan had vacated, when they had previously been included in the rent. He then had to arrange his own bins and has not had Wi-Fi at the property since October. x. They have contacted his employer who is also their commercial tenant to complain about his behaviour.
Ms Sullivan gave evidence in support of Mr Donaldson saying that lack of privacy was her biggest concern with the tenancy. She detailed an occasion when she was breastfeeding her son and a contractor she had not been advised of was on the roof and could see her in a state of undress. She also confirms the commercial tenants were noisy which was stressful with a new-born and that the McGuires would come over regularly without providing notice. She says the cameras kept her on edge as she felt she was being watched.
The McGuires’ response in brief is as follow: i. They did have a joiner intending to move in, but he pulled out. They say they did warn Mr Donaldson before he signed the tenancy that the property was not suitable for children or pets, part of the reason being that it was a commercial premise and there would be noise. ii. They always provided notice if they intended to come into the apartment but did drop by on occasion, usually to give them fruit or other gifts. They deny ever going into the home without invitation and say they had a friendly relationship with Ms Sullivan in particular. iii. The cameras are required to protect the commercial tenancies and they only review the footage when there are concerns that required them doing so. Mr Donaldson, they submit, provided those concerns. iv. They agree they did speak to Ms Sullivan about a concerning car that was at the property as it was not warranted and registered, and they were worried about its occupant. v. Ms McGuire says Ms Sullivan asked for her assistance in leaving which is why she helped. vi. Mrs McGuire agrees she did call around about Mr Donaldson’s flatmate because she was concerned as it appeared he had been bailed to the address. She was worried about what type of person he was, especially as both her grandsons were often at the premise. vii. Mrs McGuire considers that all the breach notices were lawful and issued upon valid concern. viii. Mr McGuire submits that the roofing contractor was nowhere near the apartment when he was examining the roof. They gave notice that he would be attending but the weather prohibited him coming on that day, so he came shortly a few days later. ix. Ms McGuire agrees that they changed the wifi password and removed the bins after the October inspection because he was intimidating her and preventing them from conducting a full inspection. The law
Section 38 of the RTA states that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant.
The word 'privacy' in section 38(2) RTA does not mean privacy in the sense of the Privacy Act 1993. The purpose of the section is to ensure tenants are free from unwarranted or undue intrusion or disturbance in their private lives while living at their home.
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 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.
It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
Breaching section 38 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. Findings
I do not find it proven that the McGuires’ behaviour prior to Ms Sullivan leaving amounted to harassment as the tenants could have asked them to cease their friendly visits at any time. I also find that the tenants were given sufficient notice of the nature of the tenancy (i.e. being in a commercial area) and it is disingenuous of them to complain about it later. This is particularly so given Mr Donaldson works within the complex so is well aware of its nature. This dismisses Mr Donaldson’s claim for misrepresentation.
The tenants should however have been notified of the day of the roofer’s visit; it is not sufficient to rely on the ‘trade practice’ that if work is prevented by bad weather they just come on the next fine day. Ms Sullivan was rightfully upset when presented with a man outside her second story bedroom window.
Having considered the evidence thoroughly, I find it established that the McGuires have acted inappropriately towards Mr Donaldson on occasion after the disagreement in October. They were clearly of the view that the tenancy should end and monitored the cameras extensively, such as through the night, to find examples of inappropriate behaviour they could breach him on. There is nothing wrong with having the cameras in place unless they are used to observe a person’s behaviour, which they were here.
The McGuires unilaterally altered the tenancy agreement to withdraw the provision of bins and Wi-Fi which was unjustified and punitive action. They understandably were finding the tenancy difficult given Ms Sullivan’s actions and that Mr Donaldson had ceased paying rent. However, they commenced what I consider amounts to a campaign to end the tenancy.
I do accept that they considered the notices they gave were valid, however they were not following the clearly set out requirements of the RTA in serving those notices. They spoke with Tenancy Services on multiple occasions and accessed the website where clear information is provided regarding these notices. I consider they were therefore negligent in their observation of the law here.
Accordingly, I find that the McGuires have breached section 38 by disturbing Mr Donaldson’s right to quiet enjoyment of his home, to the extent of harassment. In this respect I find they have committed an intentional unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.
I therefore consider an award of exemplary damages pursuant to section 109 of the RTA. When deliberating on this, I take into account the following in particular: a. The McGuire’s main intention was to stop the multiple issues they were having with Mr Donaldson in their property. He was not paying rent, had damaged the property and was behaving at times in an unacceptable manor. They were genuinely distressed at the turn the tenancy had taken and we attempting to deal with the situation. b. Mr Donaldson has not helped himself by acting at times rudely and aggressively to the McGuire family. c. In saying that, the McGuires were negligent in the processes they undertook. They served multiple inadequate notices on Mr Donaldson. They are long term landlords both residentially and commercially and as such it is incumbent on them to be clear on the law they operate within. d. The removal of the bins and Wi-Fi was clearly punitive action which is unacceptable. e. The monitoring of the cameras was invasive and breached Mr Donaldson’s right to privacy. f. The McGuires did overstep in contacting Ms Stevenson and Mr Donaldson’s employer regarding his actions. g. Section 38 protects the fundamental right of tenants to feel secure in their home. It is therefore clearly in the public interest for the Tribunal to uphold that right.
Statutory exemplary damages have been described by the High Court as more like a fine or a penalty, as opposed to compensation for loss, although they go to the aggrieved. Having considered all of the above, I find that an award of $1,000 is justified in the circumstances.

Did the landlords fail in their maintenance obligations?

Mr Donaldson claims that the McGuires have breached their maintenance obligations with respect to the stairs, windows and insulation. I consider each issue separately. The stairs
There is no dispute that the outside stairs (the only access to the apartment) had plastic netting over the gaps until recently. Mr Donaldson and Ms Sullivan say this was a safety hazard and they regularly asked Richard to repair it as it would constantly come loose. They say they were told it would be repaired within three months of the commencement of the tenancy, but it never was. In November ply was installed in replacement of the netting but they submit this is still a temporary and dangerous measure.
Mrs McGuire explains the stairs were a temporary measure until they had approved consent to complete the internal stairs. They have been working on obtaining the approval for this work which they have recently received.
Richard did not attend the hearing, but Ms McGuire’s evidence is that he never passed on any requests to repair the netting or concerns about the safety from the tenants. They say the first time they heard any mention about safety concerns was with the application which is why they immediately replaced the netting with the ply. Mr McGuire’s evidence as a licensed building practitioner is that the stairs are compliant.
Having assessed the evidence I do not find it established that the stairs are incompliant with the building code as no specific evidence on the code was provided. I do however consider the pictures show loose, messy and insufficiently secured netting which is a maintenance issue.
Section 45 of the RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Given the lack of evidence from Richard, I accept Mr Donaldson’s evidence that he did raise the issue with him on occasion. I find it more likely than not that he raised it casually and it was not considered a priority by either of them. I make this finding as Mr Donaldson did not contact Ms, Mr or Mrs McGuire about it, did not raise it at the inspections and his concerns regarding his son would not have been realised at the time his son was living there given he was not crawling at that stage.
Accordingly, I find this a breach of section 45 but at the lower end of the scale given as soon as Mr Donaldson raised it formally, the gib was installed. I discuss redress below. The windows
Mr Donaldson and Ms Sullivan also say that the windows were draughty to the extent that the curtains would blow even when the window was closed. They say the snibs did not have wedges on them and as such the windows could never be closed fully. Mr Donaldson says that at one stage he had to tape the nursery window shut to stop the draughts. They say their power bills were exceptionally high as a result and on occasion they had to sleep in the lounge under the heat pump. They also worried for the security of the property as the windows could be levered open.
Mr Donaldson says he raised the concern early on with Richard who said he would get to it. When he did not, he asked Mr McGuire if he could install foam tape which he agreed to, but when he realised the cost, he did not do so.
Mrs McGuire says the first they heard about it was at the inspection on 11 October, which was the first inspection. They immediately instructed a contractor who attended to the windows.
I accept Mr Donaldson’s evidence that he did raise the issue but again find it was done casually with Richard and Mr McGuire.
A landlord must provide and maintain locks to ensure that the premises are reasonably secure 6 . I do not consider the windows rendered the property insecure as they had security stays on them. This claim is dismissed.
The RTA 7 requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) within 120 days of the commencement of the tenancy. The HHS draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
Under s 13A(1CA) RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations. No statement was included in the tenancy agreement as the McGuires say they were not aware of their requirement to have such an inclusion. Accordingly, there is no documented evidence of the apartment’s compliance at the beginning of the tenancy. They have retrospectively completed one now which I do not accept given it was written after the hearing.
I accept Mr Donaldson’s evidence that the windows were in this state throughout the tenancy. The HHS are a positive obligation on a landlord and are different from their maintenance obligations which usually require a tenant to raise concerns. Accordingly, I find that the windows did breach the HHS until they were repaired in November. I discuss redress below. The insulation
Mr Donaldson claims that the landlord has breached the obligations under section 45(1)(bb) of the RTA by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. He says the apartment was very cold 6 section 46(1) and (2) Residential Tenancies Act 1986 7 under section 45(1)(bb)
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Mr McGuire who built the apartment in 2001 stated in oral evidence that the insulation was installed with an R-value of 1.8 when it was built. He says it was last inspected three years ago and was in good condition at the time. The tenancy agreement also states that the insulation had an R-value of 1.8.
Post hearing, the McGuires provided a retrospectively completed HHS statement. It states that the ceiling insulation has an R-value of 2.4. Without any corroborating independent evidence such as photos, I accept their evidence given at the hearing rather than this retrospective statement.
Accordingly, I do not find it established in evidence that the ceiling insulation is compliant with the Insulation Regulations which is an unlawful act. I discuss redress below.

Did the landlords give unlawful notice to terminate?

Mr Donaldson claims that the McGuires have breached their obligations under section 60AA to give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
I do not find it substantiated that the McGuires tried to terminate the tenancy knowing they were using an unlawful process. They have negligently failed to educate themselves correctly as to the lawful processes to serve notices and terminate a tenancy, but I do not consider they were abusing the process. This claim is dismissed.

What monetary awards should be made?

Mr Donaldson claims compensation and/or exemplary damages for the McGuire’s breaches which have been established above regarding the windows, insulation and stairwell. He has not provided evidence of specific financial loss to substantiate his claim for compensation and accordingly leaves an assessment to the Tribunal.
As a matter of law, a tenant is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. What this means is that if a landlord was not carrying out repairs (such as the stair well and windows) I would expect a tenant within a reasonable time to (i) serve a 14 day notice to remedy the breach on the landlord, (ii) arrange for the repairs to be done and for the landlords to reimburse him or her the cost of the repairs (if the repairs were urgent), (iii) or apply to the Tenancy Tribunal for a work order and compensation if the landlords failed to comply with the 14 day breach of duty notice. Mr Donaldson took none of these steps, nor did he raise the issues formally until his application to the Tribunal.
Accordingly, I do not consider an award of compensation for any of these breaches reasonable in the circumstances. I therefore turn to the claim for exemplary damages.
Exemplary damages may be awarded up to a maximum of $7,200.00 8 for breaching a landlord’s obligations with respect to maintenance and insulation. I have found that the McGuires did commit these breaches and as they were well established landlords, should have ensured their compliance with the law. They therefore committed intentional unlawful acts.
In considering an award of exemplary damages, I note the following: a. I do not accept that Mr Donaldson raised any concern regarding insulation with the McGuires. He also did not take mitigating steps with respect to the maintenance issues. b. I accept the insulation is in reasonable condition. c. The R-value is only slightly less (1.8) than that required (1.9) and would not have made a measurable difference. d. The stairwell was a hazard and was able to be seen by the McGuires. e. No one was hurt and no evidence was given that anyone tripped on the stair netting. f. The windows were insufficiently maintained and not compliant with the law, however I do not consider it proven that the impact was as significant as alleged. g. The McGuires were obliged to ensure their home was compliant at the commencement of the tenancy, however it was not. h. Parliament have set the maximum award of exemplary damages for such breaches relatively high which signals the level of importance they attribute to such breaches. i. There is strong public interest in improving the insulation of the housing stock, and for parties interested in a particular dwelling to have good information about its insulation status.
Having assessed all of the above factors, I find that an award of exemplary damages at the lower end of the scale of $750 is appropriate. 8 section 45 (1)(A) and Schedule 1A RTA The landlord’s applications

Is the tenant responsible for the damage to the premises?

The McGuires have claimed compensation for having to rectify damage Mr Donaldson has allegedly caused to the premise. However, as discussed above, whilst Mr Donaldson remains at the tenancy, he is entitled to remediate the damage himself. It is only when he leaves the property with damage that he accrues the liability the McGuires wish to attribute to him. Accordingly, if damage is left in the property when it is returned to them, they will need to claim compensation for those costs at that time.

Has Mr Donaldson interfered with a fire escape?

The McGuires submit that Mr Donaldson has interfered with a means of escape from fire within the meaning of the Building Act 2004 in breach of section 40(2)(ab) RTA. The definition of “means of escape” includes “continuous unobstructed routes of travel from any part of the floor area of that building to a place of safety”. They say he has done this by putting a padlock on the balcony gate.
I do not accept that the padlock is a breach of s40(2)(ab) as it is no different to a locked door, particularly as Mr Donaldson says the key is always next to or in the lock. Further, the gate can relatively easily be hurdled as it is relatively short. Therefore, this claim is dismissed.

Has Mr Donaldson harassed another tenant?

The McGuires seek exemplary damages on the basis that Mr Donaldson has allegedly interfered with the reasonable peace, comfort, or privacy of the landlord’s other tenants in the use of the premises occupied by those tenants in circumstances that amount to harassment of a tenant. 9 They say he has sworn at other tenants and blocked their vehicles in.
I do not consider that the evidence substantiates this claim. No direct evidence was provided from Ms McGuire’s son with respect to their altercation and as such I accept Mr Donaldson’s evidence that the son swore first and that he did not threaten them. Further, the times his vehicle were blocking the drive were short and for actual purpose.
Accordingly, this claim is dismissed. 9 Section 40(3A)(d) RTA Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall.

Tenancy Tribunal case 4720850 — Rent arrears at Apartment 5, 128 Park Road, Miramar, Wellington 6022

At a glance

Tenancy Tribunal case 4720850 — Rent arrears at Apartment 5, 128 Park Road, Miramar, Wellington 6022

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Did the landlords fail in their maintenance obligations?

Did the landlords give unlawful notice to terminate?

What monetary awards should be made?

Is the tenant responsible for the damage to the premises?

Has Mr Donaldson interfered with a fire escape?

Has Mr Donaldson harassed another tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Should the tenancy be terminated?

Did the landlords fail in their maintenance obligations?

Did the landlords give unlawful notice to terminate?

What monetary awards should be made?

Is the tenant responsible for the damage to the premises?

Has Mr Donaldson interfered with a fire escape?

Has Mr Donaldson harassed another tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions