Published tribunal order
Tenancy Tribunal case 4752050 — Exemplary damages at 338F Glenvar Road, Torbay, Auckland 0630
Decided 28 May 2024 · Published 28 May 2024 · Application 4752050
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal Orders suppression of the tenant’s name and identifying details.
- The Tribunal Orders suppression of the tenant’s name and identifying details.
- must pay immediately, calculated as shown in the table below:
Reasons
- Both parties attended the hearing on 13 May 2024.
- The tenant was represented by [The tenant's representative].
- The landlord was represented by Mr Sheppard. It was not clear on what basis Mr Sheppard appeared for the landlord. He is not a director of the landlord company. There is no agency identified in the agreement and no notification by the landlord of any property manager appointed for it.
- The tenant however confirms that all dealings concerning the tenancy have been with Mr Sheppard and a letter received by the tenant’s representative from the landlord’s lawyer, confirms Mr Sheppard’s authority. I accept he is able to represent the landlord in this matter.
- Although there had been ample opportunity to do so before the hearing, at the conclusion of the hearing I gave the landlord the opportunity to provide evidence about the sale of the property, upon which the notice of termination was based. Mr Sheppard indicated he could provide that evidence by the end of the day and leave was given accordingly. A continuation of the hearing by teleconference to consider that new evidence was arranged for 1:00pm on 15 May 2024.
- It appeared no such evidence had been filed. The tenant’s representative also confirmed that nothing had been received by her. That teleconference was vacated.
- The landlord then provided a screenshot appearing to show an e-mail sent to the registry and the tenant’s representative later on the hearing day, attaching a copy of an agreement for sale and purchase of the property. It seems the attachment was too big and the e-mail had not been sent.
- The teleconference was rescheduled for 1:15pm today and the parties notified. [The tenant's representative] and the tenant attended. Several unsuccessful attempts were made to phone Mr Sheppard. Bond
- A bond of $3,200.00 was paid.
- The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim, the bond is refunded in full to the tenant.
- That does not prevent the landlord bringing a compensation claim, it simply means that the bond cannot remain held in the meantime.
- The landlord acknowledges that the bond was never lodged with the Bond Centre.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord’s evidence is that the failure to lodge the bond was an oversight. While that may be the case, Mr Sheppard’s evidence is that the landlord became aware of the oversight when the tenancy ended on 2 June 2023. That was nearly a year ago, but the bond was still not lodged to correct the oversight.
- It is also clear from Mr Sheppard’s evidence that although no claim has been filed against the bond, there are compensation issues that the landlord wanted to address with the tenant. The landlord intended to keep the tenant’s bond until those negotiations were concluded to the landlord’s satisfaction. That is exactly the unfair situation that having the tenant’s Bond independently held at the Bond Centre, is designed to avoid.
- Those are factors aggravating the landlord’s breach.
- I find that an award of $1,000.00 against the maximum of $1,500.00 would be just in the circumstances. Content of the Agreement
- Section 13A RTA requires that the landlord must ensure that certain prescribed information is included in the agreement. That information includes information about the insulation and healthy homes compliance.
- The tenant has highlighted several instances where required information is absent from the agreement concerning: a. the Healthy Homes compliance date; b. information about insulation installation c. information about extractor fans d. moisture ingress.
- The landlord says that must be an earlier copy of the agreement, before the rest of the information was completed. With respect, that is not consistent with the evidence and I find that the landlord failed to complete those parts of the agreement.
- Failure to include required information is an unlawful act for which exemplary damages of up to $750.00 may be awarded.
- The premises were quite new and compliant and there is no suggestion by the tenant that she was misled in any way by the absence of that information. There is no evidence that the premises were inadequate or failed to comply, in fact, with Healthy Homes standards.
- It seems more likely than not that the failure to include that information was due to carelessness on the landlord’s part.
- That being so and there having been no adverse consequences for the tenant from the landlord’s beach, I consider only a modest award of exemplary damages would be appropriate to recognise that the landlord has committed an unlawful act and that there is a public interest in landlords making sure they meet their legal obligations. Water Rates
- The Watercare invoice due for payment on 20 July 2022 was provided to WINZ for payment on behalf of the tenant. WINZ paid the total invoice, including a sum of $23.10 for fixed wastewater charges, that were the landlord’s responsibility.
- The tenant then suggested that it would be easier that she pay $20.00 per week toward water rates, which she did from then on.
- The tenant’s representative suggested that should be seen as an unlawful rent increase. That is not how I view the evidence.
- The landlord neglected to provide the tenant with copies of the Watercare invoices after that, which is a failure on the landlord’s part. However, having reviewed the payment records and the Watercare invoices for the period of the tenancy, I am satisfied that the tenant has not paid more to the landlord for water, than the consumption charges for which she is responsible (s.39).
- The tenant’s compensation claim is declined. Termination of the tenancy
- The landlord had issues with what it considered to be anti-social behaviour by occupants of the premises.
- A support worker for the tenant wrote to Mr. Sheppard on 1 October 2022, “[The tenant/s] has informed me that she's received an eviction notice from you with a 14 day notice period. She has explained the recent situation with the neighbour and the issue with the driveway and I understand this was given as the reason for the eviction notice.”
- The letter went on to explain from the social worker’s point of view the difficult situation that the tenant and her family were in.
- The landlord’s lawyer then wrote to the support worker, “The notification to the tenant is in compliance with the Act and is served as a final notice to the tenant to cease and desist the ongoing breaches under their tenancy agreement.”
- Mr Sheppard txt the tenant on 8 December 2022, “I really don't want to have to have you and your family evicted from there but after yesterday you're leaving me with no other choice than to go down that option. With Christmas approaching and the difficulty in finding another accommodation I'm giving you until the 20th of January to find another place or I will go down the path of obtaining an eviction order.”
- Despite how the lawyer’s letter is framed, there is no evidence of any notices having been given to the tenant in compliance with section 55A.
- Then, on 22 February 2023 the tenant was notified by the landlord, “This is to inform you that we have accepted an offer to sell a property at 338F Glenvar Rd, Torbay that you are currently renting. Unfortunately the condition of the sale and purchase is for vacant position at the end of your current tenancy which is 2 nd of June 2023.”
- With considerable difficulty, as illustrated by the letters of support provided by her social worker, the tenant found alternative accommodation. She then became aware that a few weeks after she had vacated the premises, new tenants had moved in. The tenant therefore questions whether the notice of termination was given on legitimate grounds.
- Mr Sheppard’s evidence is that although there was an unconditional agreement for sale of the property requiring vacant possession, that agreement was subsequently cancelled and the property remains unsold. He acknowledges that new tenants have moved in, but says it was more than a few weeks after this tenancy ended.
- During the hearing I expressed the view that given the circumstances leading up to the notice of termination being given and the fact that the premises have been rented again, there is some onus on the landlord to provide evidence of valid grounds on which the termination notice was given.
- I expressed some surprise that as the application was filed on 28 November 2023, including the tenant’s claim about the notice of termination, the landlord had chosen not to provide evidence before the hearing. Evidence such as the sales listing, a copy of the agreement for sale and purchase, correspondence between the parties or their lawyers regarding cancellation of the agreement and so forth should all be readily available.
- The termination notice was issued in reliance on s. 51(2) which provides that: “A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession”
- The agreement for sale and purchase provided by the landlord appears to show an agreement to sell the premises with a settlement date of 30 June 2023. No other supporting evidence has been provided.
- There are however several apparent deficiencies in the agreement: a. it is not dated, so it is not possible to determine when the 5 working day finance condition would need to have been met; b. apparent alterations to the purchase price are not counter initialled by the vendor; c. no details of any agency or lawyers acting for the parties are provided when lawyers would necessarily have been required to complete the transaction; d. settlement date is recorded as 30 June 2024, whereas the notice of termination says that, “...the condition of the sale and purchase is for vacant position at the end of your current tenancy which is 2 nd of June 2023.”
- Further and fundamentally, notice may be given under s.51(2) where vacant possession is required under an unconditional agreement for sale. No evidence is provided, in the sales agreement or otherwise, as to the basis on which it is said the purchaser was able to avoid settling an unconditional agreement. The terms of the agreement require the purchaser to complete settlement if the premises are not untenantable (clause 5.2(2) of the agreement). That cannot have been the case here, as the landlord acknowledges that a new tenancy began before or shortly after the settlement date.
- The evidence establishes inaccurate statements about anti-social behaviour notices being given to the tenant and improper notice given to the tenant on 8 December 2022 that she needed to vacate by 20 January 2023.
- I do not find that the agreement provided by the landlord, particularly when corroborating evidence should have been readily available and presented, proves the basis for the formal notice of termination being given. I find it proved on the balance of probabilities, that the notice of termination was not validly issued under s.51(2).
- Under s.66AA, “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
- Doing so is an unlawful act for which exemplary damages of up to $6,500.00 may be awarded.
- Considering the criteria in s.109(3) (above) as they relate to this breach, I find that the notice was unlawfully issued to end the tenancy, as an alternative to properly using the anti-social behaviour notice provisions of the act, when the tenant did not comply with the landlord’s requirement that she vacate the premises by 20 January 2023.
- The hardship caused to the tenant by the landlord in doing so was considerable and was highlighted in the response given to the landlord by the tenant’s support worker when an earlier threat of eviction was given.
- The notice provisions of the RTA are designed to allow landlords to end tenancies where the circumstances allow, while protecting tenant’s security of occupation. If the landlord believed the tenant was behaving in anti socially, the provisions of s.55A provide a process for asking that the tenancy be terminated.
- There is a clear public interest in landlord’s not circumventing those processes by terminating the tenancy on unlawful grounds.
- I find that an award of exemplary damages of $2,500.00 as against the maximum of $6,500.00 would be just.
- As the tenant has had claims upheld I reimburse the filing fee.