What was Tenancy Tribunal case 4740874 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 4740874?

Compensation: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4740874?

The dispute type was not classified.

Where can I read the official tribunal order for case 4740874?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9774508-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4740874 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 4740874?

Compensation: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4740874?

The dispute type was not classified.

Where can I read the official tribunal order for case 4740874?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9774508-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4740874 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4740874 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – breach of s.45(1)(e) RTA	$1,000.00	Compensation – breach of s.45(1)(e) RTA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Claims and awards in Tenancy Tribunal application 4740874 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – breach of s.45(1)(e) RTA	$1,000.00	Compensation – breach of s.45(1)(e) RTA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details and the tenancy address.
[The respondent] is to pay Helen Nyree Houkamau $1,020.44 immediately, calculated as shown in the table below:
All other claims are dismissed.

Reasons

Ms Houkamau, the tenant, attended the hearing, along with [The landlord’s representatives], who were representing the landlord.
Ms Houkamau has claimed for breach of quiet enjoyment, compensation and exemplary damages. Breach of Quiet Enjoyment
Helen Nyree Houkamau lives in a community housing complex run by the landlord. She claims the landlord has allowed another tenant of the landlord’s, whom I will call S, to harass her.
A landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986 (“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.
Ms Houkamau also alleged that the landlord has breached their obligation under section 45(1)(e) RTA to take all reasonable steps to ensure none of their other tenants caused any interference with her reasonable peace, comfort and privacy in the use of the premises. The tenant’s evidence
Ms Houkamau said the landlord has failed to take action to prevent another tenant from harassing her as follows: a. Ms Houkamau said she complained in early November 2022 about S parking up to 4 of his vehicles to block her so she could not park at the complex of the property. b. In January 2023, Ms Houkamau said she had a verbal altercation with S and let the landlord know about this. She said the landlord told her there was nothing they could do. c. In March 2023, she said S was parking over the footpath, giving her the fingers and swearing at her. She said this started to happen every month from then and that she told the landlord every time something happened between her S. Ms Houkamau said S’s unit was only 10-20 metres away from hers. d. On 15 September 2023, Ms Houkamau maintained S’s grandson scraped her car and she caught this on video. After this, she said S would stare into her unit and into her vehicle, would swear at her and park close behind her. She maintained he came to her bedroom window also. She reported this behaviour to the landlord from October 2023. e. On 4 October 2023, she said she saw S’s partner scratch her car and get picked up by S at the end of the driveway after doing so. She told the landlord about this. The landlord said they followed up and called the S’s partner, who said she was out of town on the date the incident was alleged to have occurred, which the tenant disputed. f. On 10 October 2023, Ms Houkamau said she saw S follow her to [supermarket], drive around the car park in his truck, and when she came out of the supermarket, acid had been thrown onto the side of her car. She said the supermarket’s CCTV caught S doing this and he will be charged with damaging her car. She believed this incident is the landlord’s responsibility whereas the landlord maintained the police are the appropriate authority to deal with this incident as it occurred off the landlord’s premises. g. The parties then attended mediation on 24 October 2023 in relation to an earlier application about these issues. They reached agreement about some actions which would be taken by the landlord. h. On 30 October 2023, Ms Houkamau had a Trespass Notice served on S. i. On 31 October 2023, Ms Houkamau said S scratched her car, of which she informed the landlord. j. On 13 November 2023 Ms Houkamau said S tried to interfere with her security camera and she told the landlord. k. Ms Houkamau said there are 5 criminal charges pending against S in relation to incidents against her, including wilful damage, harassment and breach of the trespass notice. l. She said she has felt ignored by the landlord and that they have not taken action early enough or strongly enough, and that S should have been evicted much sooner. m. Ms Houkamau acknowledged that the S’s behaviour escalated around September 2023. She said she was not told by the landlord about the steps they took with S, in terms of the number of anti-social notices served on him, or that they were applying to terminate his tenancy. The landlord’s evidence
The landlord said in response: a. They have responded to Ms Houkamau from the first complaint in early November 2022 and investigated the parking issues. They visited the complex to talk with the other tenants on 8 November 2022, and sent a letter to S in late November 2022 asking him to reduce the number of his vehicles and refrain from parking on the grass. The landlord said S’s tenancy agreement did not limit the number of vehicles he could have, whereas other tenants had a provision in their tenancy agreements of one car per tenant, with no guaranteed parking bay. Thus, the landlord said they told Ms Houkamau they could not enforce any parking restrictions for S but could ask him to reduce his vehicles and did so. b. The landlord said they received a complaint from S at the time of the verbal altercation between the S and Ms Houkamau in January 2023, to say 2 of his vehicles had been badly keyed 2 evenings before then. The landlord did not blame Ms Houkamau for this but wished to point out that they were trying to juggle obligations to 2 tenants during this time. c. The landlord said they responded to Ms Houkamau about other complaints she raised up until early May 2023, and then sent another letter to S about abuse of parking privileges. d. The landlord said they issued a 14-day notice to S on 4 May 2023 about his excessive vehicles and causing a nuisance to other tenants including intimidating and aggressive behaviour. [The property manager/s] said she advised Ms Houkamau that they had issued letters to S. e. [The property manager/s] said she arranged for a tree at the complex to be removed to create additional parking space and had the agree to S agree to move forward in his parking and not obstruct the pathway. f. The landlord said they visited the complex again on 17 July 2023 and 21 July 2023 to talk to the tenants. g. The landlord said they issued another 14-day notice on 1 September 2023 to S about exceeding the number of allowed vehicle parked in the complex. This was the second 14-day notice issued to S by the landlord. h. [The property manager/s] said after Ms Houkamau reported scratching of her car on 15 September 2023, the landlord delivered the first notice of anti-social behaviour to S for the damage to her vehicle, as well as another 14-day notice about the damage to the vehicle and additional occupants at the premises. The landlord said they also issued a Trespass Notice to the S’s grandson, who was alleged to have scratched Ms Houkamau’s car. i. The landlord said that after they were told by Ms Houkamau about S’s partner apparently scratching her car, they contacted S’s partner about this and was told by her she was in Wellington at the time of the incident and denied any involvement. j. The landlord said they complied with the terms agreed in a mediator’s order of 24 October 2023, issuing notices to S and writing to all other tenants reminding them of their obligations not to cause or permit any interference with the reasonable peace, comfort or privacy of other tenants. k. The second notice of anti-social behaviour was issued to S by the landlord on 8 November 2023 for damage to Ms Houkamau’s vehicle on 31 October 2023 and a third notice of anti-social behaviour issued to S on 13 November 2023 for tampering with the property of another tenant by disconnecting the cable connecting a security camera to its power source. After the third notice was issued, the landlord said they applied to the Tribunal to terminate the tenancy of S. Then S vacated the property of his own accord, returning the keys to the landlord on 21 November 2023. As such, the landlord withdrew their Tribunal claim against S. [The property manager/s] said they did not provide details of this application to Ms Houkamau as it involved another tenant and they were conscious of privacy issues. l. [The property manager/s] said that in between issuing notices to S, she was in regular contact with Ms Houkamau about her complaints and advised her they were issuing anti-social behaviour notices and were trespassing S’s family, including his grandson and partner. She said they sought advice regularly from Tenancy Services on how to manage the situation. She said she was advised by Tenancy Services that the incident with the acid damage to Ms Houkamau’s car at [supermarket] was a police matter, as it was not on the landlord’s property and told the tenant this. Ms Houkamau disputed this. m. The landlord said that, as S’s behaviour escalated after September 2023, so did their response to this, as they stepped up the issuing of notices and acting. Ms Houkamau confirmed that the other tenant’s behaviour did escalate from September 2023.
Based on the evidence that S’s abusive behaviour towards Ms Houkamau began mainly around March 2023, after the relationship between the tenants deteriorated about the parking issues, and then continued on a monthly basis with him swearing at her, giving her the fingers, parking so as to make things difficult for her, according to Ms Houkamau, until things escalated seriously from September 2023, with his family scratching her car, S intimidating her with staring in her unit and vehicle, following her to the supermarket and the incident with the acid damage at the supermarket, I accept that there was an interference with Ms Houkamau’s reasonable peace, comfort and privacy from another tenant of the landlord’s, most of which occurred on the landlord’s premises.
Whilst the landlord took several steps to try to manage the situation, by writing letters to S, meeting with all the tenants at the complex and responding to Ms Houkamau, when the first 14-day notice was issued by the landlord to S on 4 May 2023, and then was not remedied by him within the 14-day period, the landlord did not take meaningful further steps, such as issuing immediately a further 14-day notice, until several months later when S’s behaviour escalated. The second 14-day notice to S from the landlord was not issued until 1 September 2023, about 4 months later, and then only in relation to parking issues. This was despite Ms Houkamau’s evidence that she regularly reported to the landlord about the monthly continuation of S’s swearing and other intimidating behaviour towards her from March 2023 on.
Therefore, I find the landlord failed to take all reasonable steps to ensure that none of the landlord’s other tenants caused any interference with the reasonable peace, comfort or privacy of Ms Houkamau, pursuant to section 45(1)(e) RTA. Law
Section 45(1)(e) RTA is a specific provision that puts an onus on a landlord to take all reasonable steps to protect one tenant from another tenant interfering with their reasonable peace, comfort or privacy.
A breach of section 45(1)(e) RTA is not an unlawful act within the meaning of the RTA that gives rise to a right to exemplary damages. This is important because under the RTA a tenant is entitled to recover exemplary damages only in respect of specified unlawful acts.
Section 38 is a general provision providing for the tenant to be entitled to quiet enjoyment of the premises.
A breach of section 38(2) RTA is an unlawful act. However, section 38 makes it clear that not all breaches of quiet enjoyment are unlawful acts. It is only an unlawful act if section 38(3) applies, and the breaches are properly characterised as harassment.
The District Court considered a similar situation where a tenant claimed a breach of quiet enjoyment by the landlord in failing to take appropriate measures against others in a complex to ensure the tenant’s reasonable peace, comfort and privacy, in Howard v Housing NZ Corporation [2017] NZDC 4742. Judge Harrison found that section 38 was directed to ensuring that the landlord, or any person standing in the place of the landlord, such as for instance a beneficiary of a trust owning the subject property, shall not interfere with the tenant’s quiet enjoyment. In other words, the Court found section 38 is directed to acts by or on behalf of the landlord which interfere with that quiet enjoyment. The Court said further, Section 45 on the other hand casts an obligation on the landlord to ensure that none of the landlord’s other tenants interferes with the quiet enjoyment of a tenant’s use of the premises, There is a clear distinction between actions by the landlord personally which are proscribed by s.38 and actions of the landlord’s other tenants which are proscribed by s 45(1)(e). The legislature clearly did not intend that a failure of a landlord to ensure that other tenants did not interfere with a tenant’s quiet enjoyment amounted to an unlawful act.
The District Court in Howard went on to compare section 38, with its reference to harassment, with section 45(1)(e) which does not refer to harassment of the tenant. It said section 45(1)(e) refers to the landlord’s obligation to take steps to ensure that their other tenants do not interfere with the quiet enjoyment of the tenant’s premises, which is a level of behaviour that could be less disturbing than actual harassment. As such, the Court deduced the legislature determined that it was not appropriate for a failure of a landlord to take appropriate action under s. 45(1)(e) to be declared an unlawful act. Thus, the appeal failed.
The District Court also considered a similar situation in Cavanagh v Kainga Ora [2022] NZDC 7003, where a tenant complained the landlord was permitting another tenant to interfere with her reasonable peace, comfort and privacy. The Court commented that where a situation fitted squarely within s 45(1)(e), a breach of which was not considered to be an unlawful act, it did not consider it appropriate to somehow import this obligation by the backdoor into s.38. The Court confirmed that the Tribunal could not order exemplary damages under s 45(1)(e) or s 38 in such a situation.
I consider S’s behaviour towards Ms Houkamau and the landlord’s attempts to manage this behaviour appropriately in the tenancy complex, to fit squarely within s 45(1)(e). As such, I cannot order exemplary damages under either s 45(1)e) or s 38. Therefore, I dismiss the claim for exemplary damages. Compensation
However, the Court in Cavanagh pointed to the Tribunal’s ability pursuant to section 77(1)(n) RTA to make any order by way of damage or compensation as the Tribunal shall assess in respect of the breach of any express or implied provision of the tenancy agreement or of the RTA.
Ms Houkamau has applied for compensation. She initially claimed $10,000.00 but amended her compensation claim during the hearing to $7,583.25. This included a claim for repair of the scratch damage to her car from S, in the amount of $1,443.25, the repair of the acid damage to her car caused by S at the supermarket in the amount of $2,583.25, as well as $5,000.00 for her stress. Ms Houkamau said she had to resign her job in February 2023, as she had a breakdown and had no relief as the situation with S worsened, and because the landlord did not take action against S soon enough. Ms Houkamau said she did not have insurance for her car. Further, Ms Houkamau acknowledged she could likely obtain restitution from the criminal charges against S but thought she may not be able to recover from him ultimately.
I do not award the cost of the repair to the acid damage that Ms Houkamau said S caused to her car at the supermarket. This was a situation outside the physical control of the landlord, as it occurred off their premises. I find there is insufficient evidence to prove the landlord is likely responsible for this damage and so dismiss this claim.
I do not award the cost of the repair to the tenant’s car from the scratch damage by S or his family, even though this was alleged to have occurred on the landlord’s premises. Criminal charges are pending in relation to this incident and restitution through the Criminal Court is possible for this damage. Also, the photographic evidence provided of this incident was unclear. Further, I note the scratch to the tenant’s car was the first alleged incident of property damage by S and was an escalation of S’s behaviour. Once S’s behaviour escalated to alleged property damage on 15 September 2023, the landlord issued a notice of anti-social behaviour to S the same day. The landlord is required to take reasonable steps to address the behaviour of other tenants and I find this was a reasonable step taken at the time by the landlord. Therefore, the claim for the cost of repairing scratch damage to the tenant’s car is dismissed.
In relation to the claim for compensation for stress, there was no supporting evidence provided by Ms Houkamau about her stress, for example, a medical report, ACC claim or other similar evidence. As such, I find there is insufficient evidence to support her claim for compensation for stress and dismiss this claim.
However, I have found the landlord breached s 45(1)(e) RTA and, further to the Cavanagh case, the Tribunal can make an award of general damages for such a breach. Given the evidence the landlord did not act decisively against S as quickly as it could have, after issuing its first 14-day notice on 4 May 2023 that was not remedied by S, I make a nominal award of $1,000.00 against the landlord for this breach. Filing fee
Because Helen Nyree Houkamau has been successful with the claim I have reimbursed the filing fee. Suppression
The tenant did not request suppression. During the hearing, the landlord requested suppression.
Section 95A(4) RTA provides the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord runs community housing complexes. This tenancy complex was for senior residents. The landlord’s evidence was that they responded consistently to the tenant’s complaints about the other tenant’s behaviour and acted to ramp up their response when the other tenant’s behaviour escalated. In the circumstances, and given the evidence, I find that the landlord’s interests in not having their name published outweighs the public interest in publishing their name. Therefore, I order that the landlord’s name and identifying details are not to be published.

Tenancy Tribunal case 4740874 — Tenancy dispute

At a glance

Tenancy Tribunal case 4740874 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions