Published tribunal order
Tenancy Tribunal case 4728356 — Harassment at 391 Hobsonville Road, Hobsonville, Auckland 0618
Decided 17 May 2024 · Published 17 May 2024 · Application 4728356
- Harassment
- Exemplary damages
Party names are redacted in the official published order.
Order
- The tenants’ names and identifying details must not be published.
- Michelle Wards must pay [the tenants] $3,070.44 immediately, calculated as shown in the table below.
- The Bond Centre is directed to refund the bond to the tenants immediately.
Reasons
- The female tenant attended the hearing for the tenants.
- The landlord did not attend.
- The Tribunal sent the landlord the details for the hearing date and several reminders. The landlord has not contacted the Tribunal to explain or excuse her non-attendance. The hearing proceeded in the landlord’s absence.
- The tenant has applied for refund of the bond, and compensation for moving costs and loss of wages, and the cost of repainting. Bond
- The landlord has not filed a counterclaim with Tenancy Services for the bond.
- Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant. 1 Did the landlord interfere with the tenants’ reasonable peace?
- The tenants claim the landlord interfered with their reasonable peace comfort and privacy.
- The tenants allege the landlord required them to open the kitchen windows and blinds when they did not want to, used abusive language towards them, required them to leave the spa on, came to the premises to take lemons off the lemon tree, pressured them to leave the premises early, and entered their children’s bedrooms without permission.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 2
- 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. 3
- 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". 4 1 Section 22B(2), Residential Tenancies Act 1986 (RTA). 2 RTA, s 38(2). 3 RTA, s 38(3). 4 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The landlord’s request for the tenants to open the lounge curtains during the day because of sun damage and open windows when cooking was not unreasonable. If the tenants had an issue with the request, they could have raised it with the landlord at the time.
- I do not find it proven that the landlord used abusive language.
- The landlord was concerned the tenants were not using the spa correctly. It appears the tenants misinterpreted the landlord’s instructions about how to use the spa pool as an unreasonable intrusion.
- The landlord came to the premises to get some lemons on one occasion for a sick child. She notified the tenants she would be accessing the exterior garden for this. I do not consider that a single occurrence like this amounts to an unreasonable interference.
- The landlord needed to sell the premises and informed the tenants of that and encouraged them to move out. The landlord’s messages are not coercive or demanding. The tenants could have insisted on remaining in the premises but responded sensitively to the landlord’s situation. I am not satisfied the landlord’s actions amounted to an interference with the tenants’ reasonable peace, comfort, or privacy.
- The tenants sought compensation for the cost of moving and for loss of income due to moving. Compensation is not allowed because the alleged breach was not proven.
- I deal with the landlord going into the tenants’ children’s bedrooms under the unlawful entry subheading below. Unlawful entry
- On 5 October 2018, the landlord entered the premises with the tenants’ permission to remove the spa. To get to the spa, the landlord had to go through the tenants’ master bedroom, but not the children’s bedrooms.
- Prior to the landlord’s entry, the tenants deliberately closed the children’s bedrooms’ doors. When they arrived home later, they found the bedroom doors had been opened and the CCTV camera they had in their three-year-old child’s room recorded a person entering the bedroom.
- The female tenant says she, “Felt so terrible. Do I have to live in this condition?” Although she was deeply upset by the intrusion, she did not raise the issue with the landlord. She did not want to instigate an argument that could lead to her having to move out. Her five-year-old had just started school nearby and if the family had to move, her child might have had to change school.
- 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. 5
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. 6
- By entering a part of the house that the tenant had not given consent to enter, the landlord breached the terms of the tenants’ consent. Therefore, the entry was unlawful.
- The entry was also an interference with the tenants’ reasonable peace, comfort, and privacy in the premises.
- I am satisfied that the tenant suffered significant loss of amenity and emotional harm.
- The Tribunal orders $250.00 to the tenants for the breaches.
- Exemplary damages are not available because the tenants did not formally apply for them prior to the hearing and the unlawful acts were committed more than 12 months ago. 7 Paintwork
- The tenants, of their own volition, contracted a painter to touch up parts of the walls that the tenants could not clean when they moved out.
- The landlord was unhappy with the quality of the touch-ups and required the tenants to remediate the purported damage to the paintwork. The tenants did so at a cost of $2,800.00.
- The tenancy began on 18 September 2018 and ended on 17 October 2023 – a duration of five years.
- Paintwork in a residential home is liable to require repainting about every five- to-seven years. At the beginning of the tenancy, some of the premises’ walls had been recently painted, but the tenant produced photographs from the beginning of the tenancy that prove that some of the walls were in need of repainting even then. 5 RTA, s 48(1) and (2). 6 RTA, s 48 (4)(a) and Schedule 1A. 7 RTA, s 109(1) and (2).
- The landlord got the benefit of newly painted walls when the walls were due for repainting in any event.
- The landlord should compensate the tenant for the betterment to the premises.
- It follows, the Tribunal orders the landlord to reimburse the tenants for the cost of the paintwork. Filing fee
- The tenants substantially succeeded in their claim. The Tribunal orders the landlord to reimburse the tenants for the cost of the filing fee. Non-publication
- The tenants request the Tribunal to order non-publication of their names and identifying details.
- 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. 8
- The tenants have substantially succeeded in these proceedings. I do not consider that publication is in the public interest or is justified by the tenants’ conduct or any other circumstances of the case.
- A non-publication order is made.