What was Tenancy Tribunal case 4742369 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 4742369?

Filing Fee: $20.44 awarded to landlord; Property Damage: $426.46 awarded to landlord; Rent Arrears: $8,142.86 awarded to landlord

What type of tenancy dispute was case 4742369?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4742369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261588-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4742369 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 4742369?

Filing Fee: $20.44 awarded to landlord; Property Damage: $426.46 awarded to landlord; Rent Arrears: $8,142.86 awarded to landlord

What type of tenancy dispute was case 4742369?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4742369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10261588-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4742369 — Rent arrears

Tenantcheck Insights

Reasons

Background

Claims and awards in Tenancy Tribunal application 4742369 — net $6,309.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$8,142.86	25. The amount of rent arrears is proven.
Repairs	$426.46	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,309.76
Total payable by Tenant to Landlord	$6,309.76

The parties entered into a fixed term tenancy commencing on 4 September 2023 and ending on 18 December 2023.

The rent was $1,140.00 per week. Ms Draper paid a bond of $2,280.00.

Ms Draper left the property on 30 October 2023.

The landlord attempted to find another tenant, but was unable to. After 18 December 2023 the property was put on the market for sale. This was always the landlord’s intention, and it is noted in the tenancy agreement.

The landlord’s application seeks rent arrears to the end of the fixed term. The application also seeks the cost of repairs to a power box and to a windowsill.

The tenant’s application seeks compensation and exemplary damages for breach of quiet enjoyment / harassment, under multiple headings.

The hearing took place at the [Event location suppressed] Courts on 24 April 2024. [The landlord/s] attended the hearing in person. Ms Draper and her son Jayden attended the hearing by phone with the consent of the Tribunal. Landlord’s application Rent arrears

Within a few weeks of the commencement of the tenancy, Ms Draper began expressing a concern about “electrical buzzing” at the property. She sent [The landlord/s] an email about this.

[The landlord/s] replied that she did not understand the concern, but that Ms Draper was “most welcome to hire someone to check out the property”.

On 2 October, Ms Draper sent [The landlord/s] an email giving four weeks’ notice of her intention to vacate. The email explains that Ms Draper had to leave the property because “the electrical vibration and activity is so bad now it’s causing ill health”.

[The landlord/s] replied to that email the same day, attaching a letter acknowledging receipt of Ms Draper’s “notice to physically vacate the premises on 30 October 2023”. The letter states that rent is due until the end of the fixed term, but the landlord will attempt to find a new tenant and if they are successful, then rent will cease when the new tenancy begins. The letter states that [The landlord/s] will carry out an inspection and collect the keys on 30 October 2023.

[The landlord/s] carried out an inspection and collected the keys on 30 October 2023.

Ms Draper argued that by taking back the key the contract is “null and void” because the landlord has taken back the property “for private use”.

A fixed term tenancy cannot be ended by notice 1 . Mr Draper’s notice on 2 October 2023 was ineffective.

It a tenant leaves the premises before the end of the fixed term, the tenant remains liable for rent until the end of the fixed term, or until the premises are re-let (whichever occurs first).

A fixed term tenancy can be ended by agreement. A landlord can agree to release a tenant from a fixed term tenancy.

The question here is whether [The landlord/s]’s actions - requesting the return of the keys and carrying out a final inspection - amounted to releasing Ms Draper from the fixed term tenancy.

The fact that [The landlord/s] carried out an inspection on 30 October is not a critical consideration. Inspections do not only occur at the end of the tenancy. Landlords can carry out inspections during a tenancy.

The fact that [The landlord/s] asked for the keys to be returned, and that Ms Draper returned them, is more problematic. Tenants are not obliged to return the keys until the end of the tenancy 2 . Requiring Ms Draper to return the keys meant that Ms Draper could no longer access the premises, effectively ending her right to occupy the premises. The right to occupy the premises is the essence of a residential tenancy.

However, the critical question here is whether this action amounted to the landlord releasing the tenant from the fixed tenancy. Context is important. It is relevant that: a. In the 2 October letter, [The landlord/s] clearly stated that the tenant’s notice to vacate did not end the tenancy, and that Ms Draper would remain liable for rent to the expiry of the fixed term. In the same letter, [The landlord/s] stated that she would collect the keys on 30 October. Ms Draper did not raise any objection to this. b. Ms Draper’s email notice made it clear that she intended to leave the property and not return. Staying at the property was causing her severe ill health. In a previous email, Ms Draper described it as “torture”. 1 See section 2, Residential Tenancies Act 1986 (“RTA”) definition of fixed term tenancy 2 Section RTA c. When [The landlord/s] carried out the inspection on 30 October, Ms Draper had removed all of her belongings and returned the keys. There was no indication that Ms Draper had any interest in returning to the property.

I am satisfied that [The landlord/s] requested the return of the keys because she accepted what Ms Draper had stated in her email - that she intended to vacate the premises, and that she was doing so because the property presented such a danger to her health that it was not possible to remain there.

In the circumstances, there was no reason for Ms Draper to keep the keys.

[The landlord/s] did not agree to release Ms Draper from the fixed term tenancy, and the letter of 2 October makes that clear.

The tenancy did not end on 30 October 2023. Ms Draper remained liable for rent until the end of the fixed term.

The amount of rent arrears is proven. Repairs

Ms Draper accepted this part of the landlord’s application. Tenant application Interference with reasonable peace, comfort, and privacy

Landlords have a duty to not cause or permit any interference with the reasonable peace, comfort, and privacy of the tenant 3 . A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act 4 . Exemplary damages of up to $3,000 can apply.

Ms Draper provided a written submission setting out her concerns under this heading.

Some of Ms Draper’s submissions are too general and subjective to be the basis of a claim of breach of quiet enjoyment. By this I mean Ms Draper’s comments that: a. She felt like she was being judged. b. She felt “micromanaged and observed”. c. She felt that “the whole experience was traumatising”.

Some of the submissions related to specific issues / concerns, but are not serious or significant enough to amount to a breach of reasonable peace, comfort, and privacy even if proven. By this I mean Ms Draper’s allegations that 3 Section 38(2) RTA 4 Section 38(3) RTA [The landlord/s] “lied about my credit rating” and that [The landlord/s] “offered and sent her own left-over medication to my letter box for me to use”.

The specific allegations that could arguably amount to a breach of quiet enjoyment are that: a. [The landlord/s] sent emails with inappropriate comments including a comment that “We are worried about your mental health”. b. Lawn mowing contractors attended at the property on 21 September 2023 and caused excessive noise / disruption. Emails

Ms Draper provided copies of several email exchanges in her evidence.

None of those emails contain the specific comment that Ms Draper alleges.

[The landlord/s] stated that she did not recall making that comment.

It is not proven that [The landlord/s] sent an email containing the comment “we are worried about your mental health”.

There are no inappropriate comments in the emails provided to me in evidence. Lawnmowing contractor

It was part of the agreement that the landlord would take care of the lawns.

A lawnmowing contractor came to the property on 21 September 2023. Ms Draper and her son were at home at the time. The work was very loud. Ms Draper was in a meeting. The noise disrupted her meeting. The contractor carried out mowing / weed trimming near the house.

Mowing the lawns using a ride-on lawnmower, and trimming the weeds using a petrol weed trimmer, is activity that generates a considerable amount of noise. The peace of the tenant was certainly disrupted on 21 September.

However, the lawns need to be mowed and it was understood and agreed that the landlord would arrange for this to be done. The fact that the lawnmowing took place is an interference with the tenant’s peace, but not an unreasonable one.

Ms Draper submitted that she would have had no objection to the work if she had been given notice of when the contractor was coming.

I agree that it is preferable to let tenants know, if possible, when the lawns are going to be done, although there is no legal duty to do so. However, it is usually not possible. The contractor’s timing can vary due to a range of factors, particularly the weather, and it is unreasonable to require a contractor to continually update every home owner or property manager about when they are going to do the lawns.

This incident did not amount to an unreasonable interference with the tenant’s peace, comfort, and privacy, and there is no basis for an award of compensation or exemplary damages under this heading. “Electrical activity” issue

Ms Draper submitted that: a. Soon after she moved into the property both she and her son felt what she described as an electrical ‘pulse’, of unknown origin. Ms Draper explained that she could not hear the pulse but she felt it in her body. The feeling could last for hours, and it would often wake her up at night. Her son felt it in his head, and it gave him headaches. b. She checked under the house, and she saw an odd-looking blue drum. She observed that the drum was vibrating. The drum had a label on the side. In her written application to the Tenancy Tribunal, Ms Draper describes the drum as an “illegal trap”. She states “the illegal Nitrosyl Trap under the house was the last straw”. c. She raised the issue with [The landlord/s], but [The landlord/s] was dismissive of her concerns.

Landlords must provide and maintain the premises in a reasonable state of repair 5 . Landlords must also comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises 6 .

[The landlord/s] submitted that: a. There are no electrical issues at the property. This was confirmed by an electrician who carried out an assessment in November 2023. b. The “Nitrosyl Trap” that Ms Draper refers to is an old plastic drum that was converted into a kennel for a small dog. It is a basic plastic drum with wire mesh attached to it. The drum previously contained nitrosol, a widely available garden fertiliser, and the nitrosol label is still on the outside of the drum.

Having seen the landlord’s photographs of the drum, I am satisfied that [The landlord/s]’s description is accurate, and the drum has no connection to Ms Draper’s experience of electrical pulses. 5 Section 45(1)(b) RTA 6 Section 45(1)(c) RTA

The evidence provided to me does not establish any fault or defect with the property. It is not proven that the landlord failed to provide the premises in a reasonable state of repair. It is not proven that the landlord failed to comply with any requirement under buildings, health, and safety under any enactment.

There is no basis for an award of compensation under this heading. Security lights

Ms Draper’s written application mentions an issue with security lights going on at night, disturbing her son’s sleep.

Ms Draper did not mention this issue in her written submission, and she did not make any oral submissions about this issue at the hearing.

I must assume that Ms Draper abandoned this part of her application.

If she did not intend to abandon it, then my comment, based on the limited information provided to me, is that there does not seem to be any arguable breach of a legal duty by the landlord.

The property has security lights.

If Ms Draper found them irritating, she could have switched them off. Outcome, filing fee, bond

The landlord has been successful in their application and I must also award the landlord the filing fee of $20.44.

Both parties sought name suppression.

The Tribunal must grant name suppression on application to the party who has “wholly or substantially succeeded 7 ” in the proceedings. That is the landlord in this instance.

The Tribunal has a discretion to grant name suppression to any party having regard to the interests of the party and to the public interest.

There are no particular interests that would justify granting name suppression to Ms Draper in this instance.

The amount owed to the landlord exceeds the amount of the bond. The bond will be released to the landlord. 7 Section 95A(1) RTA

Reasons

Background

Claims and awards in Tenancy Tribunal application 4742369 — net $6,309.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$8,142.86	25. The amount of rent arrears is proven.
Repairs	$426.46	Repairs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,309.76
Total payable by Tenant to Landlord	$6,309.76