What was Tenancy Tribunal case 4736384 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4736384?

Compensation: Failure to maintain ex…: $500.00 awarded to tenant; Compensation: Failure to provide sec…: $1,040.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4736384?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4736384?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10228043-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4736384 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4736384?

Compensation: Failure to maintain ex…: $500.00 awarded to tenant; Compensation: Failure to provide sec…: $1,040.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4736384?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4736384?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10228043-Tribunal_Order_Redacted.pdf.

15 Rapana Drive, Tuakau, 10, Waikato 2121 Tenancy Tribunal Case 4736384 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4736384 — net $3,060.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$1,500.00	Retaliatory notice
Compensation: Failure to provide security alarms	$1,040.00	Failure to provide security alarms
Compensation: Failure to maintain extraction fan	$500.00	Failure to maintain extraction fan
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,060.44
Total payable by Landlord to Tenant	$3,060.44

Both parties attended the hearing, which was held in two parts, on the 18 December 2023 and the 12 April 2024.

I refer to my decision of the 18 December 2023 which should be read alongside this decision.

The tenancy has now ended on the 30 December 2023. The bond

The tenants say that despite assurances at the last hearing from their property manager that they would receive the bond promptly, that they did not receive the bond for over a month because there was a problem with the delay in the landlord getting the water rates bill. The tenants had to borrow their bond for the new property off a family member which caused them both financial hardship and distress.

The landlord also says that the delay was caused because the tenant moved out on the 30 December 2023, and the property management agency was closed over this period.

The bond is the tenant’s money. It represents, for most tenants their most significant investment. Landlords should ensure that they have processes in place so that tenants’ bonds are not withheld for any longer than is absolutely necessary. This should include not holding more than an expected amount to cover water rates or any cost which the landlord considers the tenant liable for. Further, the landlord should ensure that it has processes in place where the property can be inspected year around in a timely manner. In this case the owners moved in the following day, there were no concerns raised by the owners about the state of the property and therefore the bond should have been released to the tenant within the week of the tenancy ending. The claims

The tenant’s claims are: a. That the tenancy agreement provides that they should have working security cameras and they have not had working security cameras for the whole of the tenancy in that they are unable to see the recorded footage. b. That the security cameras at the property seem to be recording – the lights blink red when motion is detected, and that the landlord has breached their quiet enjoyment by not giving the tenants access to the recordings. c. That the notice given on the 9 November 2023 is retaliatory. d. That the landlord’s failed to maintain the fan in the bathroom which caused excessive condensation and mould at the property. Retaliatory notice

For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

At 9.31 am on the 9 November the property manager sent the tenant an email in response to the tenants concerns about the security cameras. In that email the property manager says she plans to talk to the owner.

The property manager talked to the owner at 9.32 and 9.38am that morning. At 10am the landlord sent an email to the tenant advising that the landlord wanted to move back into the property and that notice to terminate would be given.

The tenant says that the timing of the notice proves that it was retaliatory. The landlord says that is coincidental, that the landlord had always intended to move into that property, especially as their daughter was at Auckland University and that she mentioned it to the property manager that day as she was talking to her.

I am satisfied at the time of giving notice that that landlord was partly motivated by the tenant’s complaints, I say this because of the proximity in timing between the tenant’s complaints and the landlord’s notice. The landlord accepted in evidence that it was the property managers phone call on the 9 November 2023, where the tenant’s complaints were discussed that seemed like a good opportunity to tell the property manager to give the tenant notice. The owner told me at the hearing on the 12 April that she had been considering giving notice for some time, but was uncertain when exactly her family would need to move into the property and that the phone call on the 9 November seemed like a good opportunity to tell the property managers to give notice. The landlord said at the hearing that there was no firm date for when her family might need the property, and she was unclear if they would need it within 90 days of the termination date when she had the telephone conversation on the 9 November with her agent.

It is the fact that the tenants’ complaints and the notice was instructed in the same phone call that makes it unavoidable to conclude that the landlord was not partly motivated by the tenant’s complaints.

Landlord’s must be very careful when tenants raise legitimate concerns that they do not give notice in response to those concerns or are perceived to be giving notice in response to those concerns. A retaliatory notice can be only partly motivated by a tenant complaint and the closer the notice is given to the tenant’s complaints the more likely it is that the tenant’s complaints will be viewed as a motivating factor.

This was not a case where the landlord had to give notice on the 9 November 2023 to achieve a particular result, such as putting up the property for sale for financial hardship or needing the property for a family member who was moving to Franklin area to start a job in the new year.

Whilst I accept that the landlord did always intend to move back into the property with her family or use it as a base when coming back to Auckland, I do not accept that the notice had to be given that day. The landlord told me at the hearing that they were not sure in November 2023 when they would move back but that they expected that they would do so between February and June 2024. The owner says that she told the property manager this and the property manager suggested giving notice now to the tenants.

Having found that the landlord was partly motivated to give notice to the tenants because of the tenant’s complaints about the security cameras, I am satisfied that the landlord has breached s54 of the RTA by giving retaliatory notice. I find they have committed an unlawful act- s54(3).

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 tenants tell me that they had to move quickly and in a difficult rental market. Unfortunately, they have ended up in a fixed term tenancy of one year that they are very unhappy and feel very unsafe in. They say that at the time, because of where they work, and the children’s schools they had to take whatever was on the market at the time that they could afford within a certain location.

The tenant says despite raising the concerns with the property manager she was very happy in this home and would not have moved. The tenants’ complaints about the security cameras were appropriate, she was concerned about her privacy.

The tenants had family and friends help them move, but there was the stress of moving and the tenant says the stress of trying to get her bond back.

It is important that tenants should be able to raise complaints or concerns with their landlord without worrying about their tenancy being terminated.

Taking these factors into account I award the tenant $1500.00 in exemplary damages. The security cameras.

The tenancy agreement provided that the security cameras were included as a chattel. All chattels must be provided in working condition. For security cameras this means that the tenants should be able to record and view footage.

The landlord had an expert look at the security cameras following the hearing on the 18 December 2023. He found that the security camera images were being recorded on a local hard drive. He told me though without the password the tenant would not be able to view these images. All parties agree that the tenant never had the security camera hard drive password, and the owner said she did not know what it was.

I am satisfied that without the password the tenants were not able to use the security cameras and that they were therefore not in working order. I consider that the tenant’s should be compensated for this loss of amenity, and I award compensation of $1040.00 (which is $12.50 per week for the length of the tenancy). Breach of Quiet Enjoyment.

The tenants says that the landlord has breached their quiet enjoyment because the landlord has the means to view those images recorded on the security cameras, therefore breaching their privacy.

At the hearing in April the landlord’s security person who viewed the system and whose evidence I found very informative and helpful, concluded that there was no evidence that the security system was being recording in a way that would allow remote access (such as by viewing by phone). This is because to have any remote access you would need both internet access (and a password to the internet) and the password to the security system.

The security person confirmed that he could find no evidence that the system was linked to the internet, which was required for it to be viewed remotely for this system. The tenant said that she found an ethernet cable that linked was attached to the security system hard drive (in the cupboard) and that went through the wall and plugged into a Chorus box. At the hearing she questioned the security person if this was an ‘internet’ access, but the security person said that was likely the power box, not a modem. The tenant had checked for any other wifi connections and there were no obvious wifi connections in her home that could not be accounted for.

The landlord’s agent told the tenant that the previous property managers had turned off the cameras because the owner had access to the footage on her phone. The agent recommended the tenant simply turn the cameras back on at the box in the hot water cupboard, but to be aware that the owners might still be able to see the footage as they had installed the app.

The owners deny that they have ever seen any footage, they say they need internet access which they don’t have and cannot remember the password.

I am satisfied, on the balance of probabilities that the security cameras were not attached to the internet and therefore the landlord was not able to view the security camera footage remotely.

However, the security person also confirmed that the security images would be stored on the local hard drive, and if the landlord had the password (she assures me she does not) or if she had the ability to change the password without the original password , which the security person confirmed was extremely difficult to do with these systems, then she could potentially view the images recorded during the tenancy.

I am satisfied that it is more likely than not, that the landlord has forgotten the password and cannot operate the system without it. I say this because when the tenant attempted to get the security cameras working, the landlord told her that she did not know the password and the tenant made attempts to operate the system without the passwords, without any luck, and the tenant tried to get the password or reset it but couldn’t.

Given that no one knows the security cameras password and given the security person’s evidence that in this type of system it is very difficult to reset the password, then I am satisfied that the landlord is unlikely to be able to view any of the footage on the hard drive and the tenants claim for breach of quiet enjoyment for breach of privacy has not been proven.

The landlord also tells me that she has not seen any images, and that the security cameras are not working.

Security cameras in tenant’s homes pose the potential for gross breaches of privacy if the landlord has access to view the footage of what is being recorded. Both landlord and tenants should be aware of the capabilities of any security system, where and to what it is being recorded and who has access to that footage. This is easily remedied when the system requires both access to the internet and the security system, as the tenant has control over the internet password, but almost all systems have a hard drive which stores images as well for a short period of time. The Fan.

The tenant says that the shower always produced excessive moisture and that the extraction fan was inadequate or not working correctly.

In August 2022 the tenants complained about the moisture problem. The property manger wrote to the owners asking them to attend the property with them on the 11 August 2022, and noted that the tenants had made a complaint about excessive moisture which was similar to another complaint made by a previous tenant. The property manager says that the owners came to the property, the tenants say that they showed the owners that the extraction fan was not working by holding a piece of paper to it. They say that the paper just fell to the floor. There was no suction.

The property managers say that in 2021 the fan was fixed under warranty.

The landlord did not get any other work done on the fan, even after the inspection in August 2022. The tenants say that they complained of mould and excessive condensation at every property inspection. In September 2023 the property managers sent around a tradesperson to investigate they found that the fan was only working at 25% capacity because of twisted ducting. They fixed that issue and the landlord installed window latches on the windows which has fixed the problem.

Landlords have an obligation to repair items in a timely fashion taking into account the age and character of the home. See s45(1)(b) RTA. I am satisfied that the landlord failed to repair the fan from August 2022 to September 2023, and therefore breached s45(1)(b). The tenants had made it clear that there was a problem and continued to tell the landlord. Despite the landlord going to the property to see for themselves, they did nothing until a year later. This length of time is entirely unsatisfactory. During this time the tenant was without a working fan and the had to do extra cleaning to get rid of the condensation and any mould that grew as a result of the dampness.

I award the tenant $500.00 for this breach. The filing fee and name suppression.

Because has substantially succeeded with the claim I have reimbursed the filing fee and granted them name suppression as requested.

Reasons

Claims and awards in Tenancy Tribunal application 4736384 — net $3,060.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Retaliatory notice	$1,500.00	Retaliatory notice
Compensation: Failure to provide security alarms	$1,040.00	Failure to provide security alarms
Compensation: Failure to maintain extraction fan	$500.00	Failure to maintain extraction fan
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,060.44
Total payable by Landlord to Tenant	$3,060.44