What was Tenancy Tribunal case 4736371 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $515.50 from the bond, calculated as

How much money was awarded in case 4736371?

Compensation: Disposal of rubbish -…: $214.50 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $600.00 awarded to landlord; Rubbish Removal: $130.00 awarded to landlord

What type of tenancy dispute was case 4736371?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4736371?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261300-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4736371 about?

The tribunal order states: [The tenant/s] to pay [The landlord/s] $515.50 from the bond, calculated as

How much money was awarded in case 4736371?

Compensation: Disposal of rubbish -…: $214.50 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $600.00 awarded to landlord; Rubbish Removal: $130.00 awarded to landlord

What type of tenancy dispute was case 4736371?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4736371?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261300-Tribunal_Order_Redacted.pdf.

Unit/Flat 5, 4 Littler Place, Hamilton East, Hamilton 3216 Tenancy Tribunal Case 4736371 — Rent arrears

Claims and awards in Tenancy Tribunal application 4736371 — net $515.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 19 November 2023	$600.00		Rent arrears to 19 November 2023
Rubbish removal: contents of the yellow bin at the end of	$130.00		Rubbish removal: contents of the yellow bin at the end of
Filing Fee Reimbursement	$20.44		Filing fee reimbursement
Compensation: Disposal of rubbish - no red bin provided		$214.50	Disposal of rubbish - no red bin provided
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$750.44	$234.94
Net award	$515.50
Bond	$2,400.00
Total payable by Tenant to Landlord	$515.50

Order

[The tenant/s] to pay [The landlord/s] $515.50 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,400.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $515.50 [The tenant/s]: $1,884.50

Reasons

Hearings were held for this matter on 15 March and 9 April 2024. [The tenant’s representative] attended both hearings and representing the tenants. [The landlord’s representative 1], property manager, and her colleague [The landlord’s representative 2] attending the hearings representing the landlord.
Both parties have made an application.
The tenants claim: a) refund of bond b) compensation as a red recycling bin was not provided c) exemplary damages for harassment 4.
The landlord claims: a) Rent arrears b) Break lease fee c) Compensation for removal of rubbish at the end of the tenancy;
[The tenant’s representative] and two of his workers are named as tenants on the tenancy agreement. The two workers named on the agreement lived at the premises along with others employed by [The tenant’s representative]. [The tenant’s representative] did not live at the property.
The tenancy started on 2 September 2023 and the tenants moved out on 12 November 2023. The premises is one of five townhouses in a complex. The tenant’s claim: Is the tenant entitled to compensation as a red-recycling bin was not provided with the premises?
The tenants say a red [redacted] City Council bin was not provided at the premises. The red bins are for rubbish and non-recyclables.
There was much discussion at the hearings about the presence or otherwise of the red bin. Having listened to what both parties have said I am satisfied that it is more likely than not, being the civil onus of proof which applies in Tribunal, that a red bin was not supplied from the start of the tenancy.
I find that the red bin which was at the roadside at the start of the tenancy and used for a time by the tenants, was not the red bin for unit 5 but was the bin belonging to one of the other units in the complex.
I accept there was some confusion about whether the unit had a bin or not early on in the tenancy. I find the confusion was in part caused by the landlord telling one of the tenants to write the unit number on the bin when it turned out it was another unit’s bin. I am satisfied that at least by, if not before, 25 October the messages/emails between the parties establish that the landlord knew the tenants did not have a red bin. If a rubbish or recycling bin provided by the Council is missing it is for the landlord to arrange a new bin.
The tenants seek compensation for having to take rubbish to the refuse station on at least 6 occasions as without a red bin they could not have it collected by the Council. The tenants claim compensation of $214.50. [The tenant’s representative] said there is a standard cost of $35.75 per bag regardless of how heavy the bag is. Only one receipt for this sum has been presented as [The tenant’s representative] the rest of the receipts have been lost by one of his workers.
While [The tenant’s representative] has not presented receipts for the 6 trips claimed I find that the tenants should be compensated for the costs they have claimed. I have had regard to section 85(2) of the Residential Tenancies Act 1986 (RTA), which states:
I have applied the principle of determining the matter according to the substantial merits and justices of the case and I find the amount claimed reasonably reflects the cost incurred by the tenants to dispose of the rubbish that is non-recyclable and should have been disposed of in a red bin. I note that the sum claimed by the tenants does not include travel costs, time or inconvenience in taking the rubbish to the refuse station. Accordingly the sum of $214.50 is awarded. Did the landlord harass the tenants? If so, is an award of exemplary damages just?
A tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or the landlord’s agent (s 38(1), RTA). In addition, a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises (s 38(2), RTA).
Effectively this imposes a duty on the landlord not to do anything to interrupt the tenant’s use of the premises and preserves the tenant’s right not to have the quality of the tenancy significantly or unreasonably impaired by actions of the landlord or their agent/s.
Where a landlord breaches this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may also be awarded. See sections 38(3), 109 and Schedule 1A RTA.
“Harassment” is not defined in the Act. The District Court in MacDonald v Dodds 1 considered that the dictionary definition of “harassment” was appropriate in the context of s 38(3). The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as meaning “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. The definitions also require the act to be intentional; careless or negligence is not sufficient.
[The tenant’s representative] claims the landlord breached the tenants right to quiet enjoyment of the premises as the property manager: a) would not replace the red bin and would not accept that the premises did not have a red bin which meant the tenants had to take their rubbish to the refuse station. b) used inappropriate language in a message to [The tenant’s representative] in stating “Where the hell is the red trash can?”, then in a phone call about the red bin bullied and harassed [The tenant’s representative] by shouting at him when the call was on speaker phone and his children could hear. c) told [The tenant’s representative] his wife could get the bin from the council.
I find the issue of the red bin caused a breakdown in the relationship between the tenants and the property manager [The landlord’s representative 1], and in particular between [The landlord’s representative 1] and [The tenant’s representative]. In my view the actions of the landlord in not accepting there was not a red bin at the property amounted to a breach of the tenant’s quiet enjoyment, however I am not persuaded this amounted to harassment.
Even when I consider the additional effects of the text containing inappropriate words from the property manager, the heated telephone argument and the property manager’s reference to [The tenant’s representative]’s wife getting a replacement bin, I do not find harassment has occurred. For harassment to occur there needs to be a serious breach of the tenants’ reasonable peace, comfort and privacy in the use of the premises. This breach does not fall into that category. 1 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Accordingly this part of the tenant’s claim is dismissed. The landlord’s claim:
In determining the landlord’s claim for rent arrears and for liability for the break lease costs, I first need to determine whether the tenancy is a fixed term tenancy or a periodic tenancy.

Was the tenancy a fixed term tenancy or a periodic tenancy?

The tenancy agreement records that the tenancy commenced on 2 September 2023 and is a tenancy for an “unfixed- term”, ending on 2 September 2024.
[The tenant’s representative] argues that the agreement is a periodic tenancy as it states it is for an “un-fixed” term. He says there was no discussion with the property manager, [The landlord’s representative 1], that the tenancy was for a fixed term before he signed the tenancy agreement, and that he said when he viewed the property that his team of workers would be there for no more than 6 months. [The tenant’s representative] said he did not read the agreement before signing it and did not realise there was any reference to a fixed term. [The tenant’s representative] gave a 28 day notice to end the tenancy as he believed it was a periodic tenancy.
The property manager acknowledges she made an error in the agreement by stating it was an “un-fixed” tenancy. [The landlord’s representative 1]’s evidence is that she told [The tenant’s representative] this property was always let for a fixed term for one year and that they discussed that the tenancy would be a one- year fixed term tenancy. [The landlord’s representative 1] disputes [The tenant’s representative] said he would only need the property for a maximum of 6 months, as she would not have rented him the property if that was the case.
Neither party has presented any evidence to corroborate their view on the discussion that occurred before the tenancy agreement was signed. I find neither party’s evidence is more persuasive or compelling than the other. For that reason I look to the wording in the tenancy agreement to solely determine whether the tenancy was a fixed term or a periodic tenancy.
The wording in the agreement is inconsistent as it contains the phrase “un-fixed tenancy” but also records a start and end date for the tenancy. However I find the inclusion of the start and end date to be persuasive that the tenancy was intended to start and end on those dates and therefore is for the fixed term recorded. That is, that the tenancy started on 2 September 2023 and was due to end on 2 September 2024.
Under fixed term tenancy neither party is entitled to terminate unless by mutual consent or by order of the Tribunal. I find that the landlord has agreed to the tenancy ending earlier than the end of the fixed term as it has advertised the premises for rent.

How much rent is owed by the tenants?

Having found that the tenancy was a fixed term tenancy I find the tenants are liable to pay rent until the day before a new tenancy begins. That means the tenants are liable to pay $600.00 as claimed.

Are the tenants liable for the costs to break the term of the tenancy?

Section 44A, RTA allows the landlord to claim any expenses reasonably incurred in finding a new tenant where the landlord agrees to the tenancy ending early or the tenant parting with possession of the tenancy premises. A landlord seeking to recover such expenses must first provide the tenant with an itemised account of the expenses.
The landlord seeks $165.60 for readvertising the property. costs relating to early termination of the tenancy and finding a replacement tenant. The cost claimed is a proportionate advertising cost for listing three properties on trade me.
This claim is dismissed because the landlord has not provided any evidence supporting that it provided the tenants with an itemised account, and this is a requirement of section 44A(2) RTA. Is the landlord entitled to compensation claimed for removal of rubbish at the end of the tenancy?
At the end of a tenancy a tenant must remove all rubbish (see section 40 (1)(e)(iii), RTA).
The landlord says rubbish was left in the yellow recycle bin and the Council would not take the recycling form the bin. The landlord claims $138.00 to remove and dump the contents of the yellow bin.
[The tenant’s representative] says there is no number on the bin proving that the yellow rubbish bin in the photographs is for unit 5, and that regardless someone else could have put the rubbish in the top of the bin. He says his workers had seen the photographs and deny they put the rubbish in the bin.
However I find [The landlord’s representative 2]’s evidence convincing that she went to the premises after the tenants moved out and took the photographs. She said this was the only bin on the roadside that was not collected by the Council, that it is the bin for unit 5 and that she has many times previously told the tenants they were not to put their general rubbish into the yellow recycling bin. I am satisfied that more likely than not this was the bin for unit 5 and the rubbish was the tenants’ rubbish. I find they are liable to pay $138.00 for dumping the rubbish.
Both parties have been partly successful in their claims and I find it appropriate to award reimbursement of the filing fee for both parties as well as suppression of the parties’ names. 2

Claims and awards in Tenancy Tribunal application 4736371 — net $515.50 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 19 November 2023	$600.00		Rent arrears to 19 November 2023
Rubbish removal: contents of the yellow bin at the end of	$130.00		Rubbish removal: contents of the yellow bin at the end of
Filing Fee Reimbursement	$20.44		Filing fee reimbursement
Compensation: Disposal of rubbish - no red bin provided		$214.50	Disposal of rubbish - no red bin provided
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$750.44	$234.94
Net award	$515.50
Bond	$2,400.00
Total payable by Tenant to Landlord	$515.50

Order

[The tenant/s] to pay [The landlord/s] $515.50 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,400.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $515.50 [The tenant/s]: $1,884.50

Reasons

Hearings were held for this matter on 15 March and 9 April 2024. [The tenant’s representative] attended both hearings and representing the tenants. [The landlord’s representative 1], property manager, and her colleague [The landlord’s representative 2] attending the hearings representing the landlord.
Both parties have made an application.
The tenants claim: a) refund of bond b) compensation as a red recycling bin was not provided c) exemplary damages for harassment 4.
The landlord claims: a) Rent arrears b) Break lease fee c) Compensation for removal of rubbish at the end of the tenancy;
[The tenant’s representative] and two of his workers are named as tenants on the tenancy agreement. The two workers named on the agreement lived at the premises along with others employed by [The tenant’s representative]. [The tenant’s representative] did not live at the property.
The tenancy started on 2 September 2023 and the tenants moved out on 12 November 2023. The premises is one of five townhouses in a complex. The tenant’s claim: Is the tenant entitled to compensation as a red-recycling bin was not provided with the premises?
The tenants say a red [redacted] City Council bin was not provided at the premises. The red bins are for rubbish and non-recyclables.
There was much discussion at the hearings about the presence or otherwise of the red bin. Having listened to what both parties have said I am satisfied that it is more likely than not, being the civil onus of proof which applies in Tribunal, that a red bin was not supplied from the start of the tenancy.
I find that the red bin which was at the roadside at the start of the tenancy and used for a time by the tenants, was not the red bin for unit 5 but was the bin belonging to one of the other units in the complex.
I accept there was some confusion about whether the unit had a bin or not early on in the tenancy. I find the confusion was in part caused by the landlord telling one of the tenants to write the unit number on the bin when it turned out it was another unit’s bin. I am satisfied that at least by, if not before, 25 October the messages/emails between the parties establish that the landlord knew the tenants did not have a red bin. If a rubbish or recycling bin provided by the Council is missing it is for the landlord to arrange a new bin.
The tenants seek compensation for having to take rubbish to the refuse station on at least 6 occasions as without a red bin they could not have it collected by the Council. The tenants claim compensation of $214.50. [The tenant’s representative] said there is a standard cost of $35.75 per bag regardless of how heavy the bag is. Only one receipt for this sum has been presented as [The tenant’s representative] the rest of the receipts have been lost by one of his workers.
While [The tenant’s representative] has not presented receipts for the 6 trips claimed I find that the tenants should be compensated for the costs they have claimed. I have had regard to section 85(2) of the Residential Tenancies Act 1986 (RTA), which states:
I have applied the principle of determining the matter according to the substantial merits and justices of the case and I find the amount claimed reasonably reflects the cost incurred by the tenants to dispose of the rubbish that is non-recyclable and should have been disposed of in a red bin. I note that the sum claimed by the tenants does not include travel costs, time or inconvenience in taking the rubbish to the refuse station. Accordingly the sum of $214.50 is awarded. Did the landlord harass the tenants? If so, is an award of exemplary damages just?
A tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or the landlord’s agent (s 38(1), RTA). In addition, a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises (s 38(2), RTA).
Effectively this imposes a duty on the landlord not to do anything to interrupt the tenant’s use of the premises and preserves the tenant’s right not to have the quality of the tenancy significantly or unreasonably impaired by actions of the landlord or their agent/s.
Where a landlord breaches this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may also be awarded. See sections 38(3), 109 and Schedule 1A RTA.
“Harassment” is not defined in the Act. The District Court in MacDonald v Dodds 1 considered that the dictionary definition of “harassment” was appropriate in the context of s 38(3). The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as meaning “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. The definitions also require the act to be intentional; careless or negligence is not sufficient.
[The tenant’s representative] claims the landlord breached the tenants right to quiet enjoyment of the premises as the property manager: a) would not replace the red bin and would not accept that the premises did not have a red bin which meant the tenants had to take their rubbish to the refuse station. b) used inappropriate language in a message to [The tenant’s representative] in stating “Where the hell is the red trash can?”, then in a phone call about the red bin bullied and harassed [The tenant’s representative] by shouting at him when the call was on speaker phone and his children could hear. c) told [The tenant’s representative] his wife could get the bin from the council.
I find the issue of the red bin caused a breakdown in the relationship between the tenants and the property manager [The landlord’s representative 1], and in particular between [The landlord’s representative 1] and [The tenant’s representative]. In my view the actions of the landlord in not accepting there was not a red bin at the property amounted to a breach of the tenant’s quiet enjoyment, however I am not persuaded this amounted to harassment.
Even when I consider the additional effects of the text containing inappropriate words from the property manager, the heated telephone argument and the property manager’s reference to [The tenant’s representative]’s wife getting a replacement bin, I do not find harassment has occurred. For harassment to occur there needs to be a serious breach of the tenants’ reasonable peace, comfort and privacy in the use of the premises. This breach does not fall into that category. 1 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Accordingly this part of the tenant’s claim is dismissed. The landlord’s claim:
In determining the landlord’s claim for rent arrears and for liability for the break lease costs, I first need to determine whether the tenancy is a fixed term tenancy or a periodic tenancy.

Was the tenancy a fixed term tenancy or a periodic tenancy?

The tenancy agreement records that the tenancy commenced on 2 September 2023 and is a tenancy for an “unfixed- term”, ending on 2 September 2024.
[The tenant’s representative] argues that the agreement is a periodic tenancy as it states it is for an “un-fixed” term. He says there was no discussion with the property manager, [The landlord’s representative 1], that the tenancy was for a fixed term before he signed the tenancy agreement, and that he said when he viewed the property that his team of workers would be there for no more than 6 months. [The tenant’s representative] said he did not read the agreement before signing it and did not realise there was any reference to a fixed term. [The tenant’s representative] gave a 28 day notice to end the tenancy as he believed it was a periodic tenancy.
The property manager acknowledges she made an error in the agreement by stating it was an “un-fixed” tenancy. [The landlord’s representative 1]’s evidence is that she told [The tenant’s representative] this property was always let for a fixed term for one year and that they discussed that the tenancy would be a one- year fixed term tenancy. [The landlord’s representative 1] disputes [The tenant’s representative] said he would only need the property for a maximum of 6 months, as she would not have rented him the property if that was the case.
Neither party has presented any evidence to corroborate their view on the discussion that occurred before the tenancy agreement was signed. I find neither party’s evidence is more persuasive or compelling than the other. For that reason I look to the wording in the tenancy agreement to solely determine whether the tenancy was a fixed term or a periodic tenancy.
The wording in the agreement is inconsistent as it contains the phrase “un-fixed tenancy” but also records a start and end date for the tenancy. However I find the inclusion of the start and end date to be persuasive that the tenancy was intended to start and end on those dates and therefore is for the fixed term recorded. That is, that the tenancy started on 2 September 2023 and was due to end on 2 September 2024.
Under fixed term tenancy neither party is entitled to terminate unless by mutual consent or by order of the Tribunal. I find that the landlord has agreed to the tenancy ending earlier than the end of the fixed term as it has advertised the premises for rent.

How much rent is owed by the tenants?

Having found that the tenancy was a fixed term tenancy I find the tenants are liable to pay rent until the day before a new tenancy begins. That means the tenants are liable to pay $600.00 as claimed.

Are the tenants liable for the costs to break the term of the tenancy?

Section 44A, RTA allows the landlord to claim any expenses reasonably incurred in finding a new tenant where the landlord agrees to the tenancy ending early or the tenant parting with possession of the tenancy premises. A landlord seeking to recover such expenses must first provide the tenant with an itemised account of the expenses.
The landlord seeks $165.60 for readvertising the property. costs relating to early termination of the tenancy and finding a replacement tenant. The cost claimed is a proportionate advertising cost for listing three properties on trade me.
This claim is dismissed because the landlord has not provided any evidence supporting that it provided the tenants with an itemised account, and this is a requirement of section 44A(2) RTA. Is the landlord entitled to compensation claimed for removal of rubbish at the end of the tenancy?
At the end of a tenancy a tenant must remove all rubbish (see section 40 (1)(e)(iii), RTA).
The landlord says rubbish was left in the yellow recycle bin and the Council would not take the recycling form the bin. The landlord claims $138.00 to remove and dump the contents of the yellow bin.
[The tenant’s representative] says there is no number on the bin proving that the yellow rubbish bin in the photographs is for unit 5, and that regardless someone else could have put the rubbish in the top of the bin. He says his workers had seen the photographs and deny they put the rubbish in the bin.
However I find [The landlord’s representative 2]’s evidence convincing that she went to the premises after the tenants moved out and took the photographs. She said this was the only bin on the roadside that was not collected by the Council, that it is the bin for unit 5 and that she has many times previously told the tenants they were not to put their general rubbish into the yellow recycling bin. I am satisfied that more likely than not this was the bin for unit 5 and the rubbish was the tenants’ rubbish. I find they are liable to pay $138.00 for dumping the rubbish.
Both parties have been partly successful in their claims and I find it appropriate to award reimbursement of the filing fee for both parties as well as suppression of the parties’ names. 2

Tenancy Tribunal case 4736371 — Rent arrears at Unit/Flat 5, 4 Littler Place, Hamilton East, Hamilton 3216

At a glance

Tenancy Tribunal case 4736371 — Rent arrears at Unit/Flat 5, 4 Littler Place, Hamilton East, Hamilton 3216

At a glance

Award balance

Claims & awards

Order

Reasons

Was the tenancy a fixed term tenancy or a periodic tenancy?

How much rent is owed by the tenants?

Are the tenants liable for the costs to break the term of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the tenancy a fixed term tenancy or a periodic tenancy?

How much rent is owed by the tenants?

Are the tenants liable for the costs to break the term of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions