What was Tenancy Tribunal case 4736549 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4736549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736549?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4736549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9827322-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4736549 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4736549?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736549?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4736549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9827322-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4736549 — Harassment

Order

The application is dismissed.

Reasons

Both parties attended the hearing on 11 January 2024.
The tenant, [Tenant 1] appeared on behalf of the tenant [Tenant 2].
[The landlord’s representative/s] appeared for the landlord. Background
The tenanted premises are at [Tenancy address suppressed] (“the premises”). The premises consist of a multi storey apartment.
The tenancy commenced on 11 September 2022 and ended on 8 October 2023. The tenancy was a fixed term tenancy due to end on 9 September 2023.The tenancy was ended as a result of a consent order made by the Tribunal under TT 4692909 and dated 5 October 2023. General law
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities.” That means that the tenant must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
In this case, both parties have submitted documentary evidence including statements, timelines, photos and emails. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
The tenant claims are; • The landlord has breached their quiet enjoyment. • The landlord has unlawfully entered the premises. • The landlord has given the tenant a notice to terminate the tenancy, knowing that they were not entitled to. • Exemplary damages for the breaches • Reimbursement of the filing fee. Unlawful Entry
[The tenant/s] claim the landlord has entered the premises without consent or notice.
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. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
On 28 September 2023, the landlord notified the tenant in writing that they intended to attend at the premises the next day to see if the tenants had vacated the premises.
The tenant said that he was not home on 29 September 2023 and so cannot say if the landlord came to the premises or not.
The landlord evidence was that having notified the tenant of their intended visit, they changed their mind about attending the premises on 29 September 2023. The landlord provided an inter staff email confirming that the visit was not to take place.
Section 48(7) RTA provides that in this section of the Act the term “premises” does not include land. The landlord is accordingly entitled to enter onto the land without the prior consent of the tenant.
In this matter, the tenant has been unable to provide any evidence of the landlord entering the premises. I am not persuaded that the tenant has proven that it is more likely than not that the landlord entered the premises on 29 September 2023.The application is dismissed. Breach of Quiet Enjoyment.
[The tenant/s] claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant says that the landlord carried out a viewing of the premises with prospective tenants on 7 August 2023. The viewing was carried out by [The property manager/s].
The tenant said that prior to the viewing, they had cleaned the premises so as to present it in a good condition for the prospective tenants. The tenant said that when they left the premises, all windows and doors were closed, except for a balcony door and an upper floor window which had been left slightly open.
Upon their return to the premises following the viewing, the tenant says that they found animal hair (which they assumed to be dog hair) and traces of urine inside the house. The tenants provided photos of the hair and stains in support of their claim.
They raised their concerns with the landlord. The landlord responded by denying that a dog had been brought onto the premises during the viewing by either their staff or the prospective tenants.
The landlord evidence was simply that no dog was present during the viewing. The entry door used by the landlord during the viewing was closed during the viewing.
[The property manager/s] said that she did own a dog, but that in her seven years as a property manager she had never taken the dog to a viewing.
The hair shown in the tenant photo, if it is from a dog, is clearly from a long- haired breed. [The property manager/s] provided a photo of her dog. It is a short haired dog which would not drop the type of hair shown in the photograph. I do not accept that the tenant has proven that it was more likely than not that the landlord had a dog present during the viewing.
[Redacted], one of the parties attending the viewing, gave evidence. He said that there was no dog present at the viewing. He further said that [The property manager/s] had unlocked the door to let them gain entry at the start of the viewing and had then closed the door behind her, so that it would have been impossible for a stray dog to enter the premises during the viewing unbeknownst to the landlord.
I have considered the evidence of the parties. I do not accept that the tenant has proven that it is more likely that not that the landlord had brought a dog to the viewing, nor had they inadvertently allowed a stray dog to enter. The job of proving the claim to the civil standard lies with the tenant. The landlord said they simply had no idea how the hair came to be at the premises, but it is not for the landlord to disprove the claim.
The presence of the hair simply remains a mystery. Landlord acting to terminate tenancy without grounds
The tenant claims that the landlord has breached their obligations under section 60AA RTA.
Under Section 60AA RTA, a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so.
Breaching any of these obligations, without a reasonable excuse, is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The evidence of the tenant was that there was a dispute between the parties as to a notice to terminate the tenancy given by the tenant to the landlord.
The tenant says that any correspondence sent by him to the landlord was on the basis of him providing the landlord with an update of progress on his building. The tenant was awaiting completion of the construction of a house. As is common in that situation, the final end date for construction can vary on an almost daily basis. The tenant says that he did not give definitive notice of termination in writing to the landlord as required by s.51(2B) and s51(3) RTA.
The landlord says that the tenant approached them seeking to terminate the tenancy earlier than the fixed date in the tenancy agreement. The landlord says that all subsequent discussions with the tenant were entered into to try and accommodate the tenant in this wish and to reach an agreement on a final date when the tenant would leave the premises.
The tenant claim appears to overlook two issues;
The first is that s.60AA RTA relates to notice to terminate being given by the landlord and not the tenant; and
Secondly, the parties have subsequently consented to orders being made by the Tribunal terminating the tenancy on 8 October 2023.
As previously mentioned, the onus of proving the claim, even where it has merit, is on the tenant. The tenant must show that it is more likely than not that the essential elements of their claim have been proven. The tenant has been unable to provide sufficient evidence to reach the required standard and the claim is dismissed.
For fullness, I record that at the commencement of the hearing, the tenant wished to add to his claim by seeking compensation for injuries caused in a car accident. The tenant suggesting that the stress caused by this dispute was a contributing factor. I advised the tenant that as this had not formed part of the claim filed by him with the Tribunal, I could not consider it.
Further, the tenant sought compensation for stress. In support, the tenant provided copies of prescriptions which he said he were prescribed by his medical practitioner. He said that the medication was required to deal with stress symptoms caused of the landlord actions. I explained that there would need to be causal evidence connecting the two issues, namely the medication and the stress. No causative evidence was available at the hearing, except for the prescriptions. The claim is accordingly dismissed.
Both parties applied for name suppression.
Suppression was previously granted to both parties by the Tribunal under TT 4692909. Any publication under this matter, may lead to disclosure of the party details under that earlier application. The names and details of both parties are suppressed.

Tenancy Tribunal case 4736549 — Harassment

At a glance

Tenancy Tribunal case 4736549 — Harassment

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions