What was Tenancy Tribunal case 4765577 about?

The tribunal order states: Kathleen Evans must pay [The tenant/s] $300.00 immediately being exemplary

How much money was awarded in case 4765577?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4765577?

The primary dispute was Property damage. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4765577?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10051428-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4765577 about?

The tribunal order states: Kathleen Evans must pay [The tenant/s] $300.00 immediately being exemplary

How much money was awarded in case 4765577?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4765577?

The primary dispute was Property damage. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4765577?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10051428-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4765577 — Property damage

Order

Kathleen Evans must pay [The tenant/s] $300.00 immediately being exemplary damages.
The tenants’ other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenants’ have applied for: a. A refund of overpaid rental. b. Exemplary damages for the landlord not paying the bond to the Bond Centre. See section 19(2) Residential Tenancies Act 1986 (“RTA”). c. Exemplary damages for the landlord terminating the tenancy without an entitlement to do so. See section 60AA RTA. d. Compensation and exemplary damages for the landlord breaching their quiet enjoyment. See section 38 RTA. e. Compensation for their vehicles being broken into and stolen during the tenancy. Burden of proof and evidence
In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, the tenants must establish with evidence that their claim is more likely than not. I consider each of the claims bearing in mind the standard of proof required.
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 testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02: “... [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.” Overpaid rental
The landlord produced a statement of the rental income during the tenancy and the refunds made to the tenants.
The tenants accepted the landlord’s statement and that they had now been paid the refund to which they were entitled. Bond
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.
Exemplary damages are different from ordinary damages where the object is generally to compensate. The object of exemplary damages was described by Lord Devlin in Rookes v Barnard [1964] AC 1129 (HL) as being to “punish and deter”.
The landlord accepted that she did not pay the bond to the Bond Centre as required. She explained that she was a first-time landlord and was not aware of her obligation.
The landlord confirmed that the bond had been refunded to the tenants immediately she had satisfactorily inspected the property at the end of the tenancy.
I find that the landlord has committed an unlawful act. 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 intended to withhold the bond and not pay it to the Bond Centre. The action was intentional.
The District Court in TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 confirmed that: “Like all citizens a landlord is deemed to know the law. Parliament’s intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The tenants did not suffer any loss. However, it is in the public interest that an award of exemplary damages be made as a deterrent.
The tenants are awarded $300.00 in exemplary damages for this breach of the landlord’s obligation under the RTA. Unlawful termination and incorrect notice period
The landlord first notified the tenants of a significant change in her circumstances and the need for her to sell the property in an electronic message of 21 September 2023. This was not formal notice terminating the tenancy.
Formal notice was given on 2 November 2023. The landlord’s notice gave four weeks’ notice under the erroneous belief that this was the required notice period. In that communication, she offered to extend that period to six weeks. The parties agreed to terminate the tenancy on 3 December 2023.
Section 51(2) RTA provides that the period of notice required where the landlord wishes to put the property on the market is 90 days.
The property was put on the market by the landlord and she confirmed at the hearing that it has been sold.
Under Section 60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, 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 Residential Tenancies Act 1986.
While the landlord did not give the tenants the appropriate notice, the landlord was entitled to terminate the tenancy because she wished to sell the property. The landlord has not therefore breached section 60AA RTA because the essential element of the landlord knowing that she was not entitled to give the notice is absent. She was entitled to give the notice. It was the notice period that she got wrong.
The tenants’ claim for exemplary damages is dismissed.
Just as a landlord is deemed to know their rights and obligations under the RTA, so are tenants deemed to know their rights and obligations. While I acknowledge that the tenants were first-time tenants, they could have investigated or enquired about their rights under the RTA and pointed out to the landlord that the correct notice period was 90 days. They did not do so and accepted a shorter notice period.
The tenants are not therefore entitled to compensation where they accepted the shorter notice period without asserting their rights under the RTA. If they had done so and the landlord had insisted on the shorter period, then the tenants may have been entitled to compensation.
The tenants’ claim for compensation for the incorrect period of notice is dismissed. Breach of quiet enjoyment
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) Residential Tenancies Act 1986.
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 specific acts the tenants complained of were: a. The landlord messaging them too often. b. The landlord driving past and then commenting to them on aspects of their tenancy. c. The landlord’s mail coming to the property and the landlord then complaining to them when she was not promptly notified of its arrival. d. The landlord’s use of electronic communication and not face to face communication. e. The landlord looked into the property’s windows when the were on the property with the tenants’ permission for another purpose.
The landlord explained that she lived three minutes away from the property and so passed it regularly on her way to work or when out on a run. Because she could see that the property was being well-maintained and she was very busy, she did not require face to face inspections of the property.
The landlord provided copies of all electronic communications between the parties. Having reviewed them, I cannot see that they were superfluous, excessive, onerous or anything other than the usual communications between landlord and tenant. Indeed, the communications appear polite and good- natured.
At no stage during the tenancy did either of the tenants complain to the landlord about the number or style of the communications and not do their responses to the landlord indicate that there was a problem. The landlord only heard of the tenants’ concern when they filed their application. At no stage did the tenants ask her to stop or change her method of communication.
I understand that one of the tenants is susceptible to stress and became fearful of the landlord because of her position of authority. However, I do not accept that there is anything on an objective assessment in the landlord’s communications that could be considered harassment of the tenants or a breach of their quiet enjoyment.
The tenants’ claims for exemplary damages and compensation are dismissed. Compensation for vehicle damage
At the start of the tenancy the tenants agreed with the landlord’s requirement that only two vehicles be parked on the driveway. This was because the landlord was concerned that its composition of packed sand and/or gravel would be damaged by its use by more than two vehicles, especially during a wet winter.
Occasionally the tenants or their guests parked in the driveway so that there were three cars parked there. As noted above, the landlord would then remind them of their agreement and the tenants would arrange their vehicles to comply. This meant that the tenants’ cars were parked on the road outside the property on occasion.
Regrettably, one night one of the cars was broken into and the other was stolen and destroyed. The tenants claimed for their insurance excesses for this damage on the basis that there is no provision in the RTA allowing a landlord to limit the number of cars parked on a property and that had the cars been parked up the driveway, they would not have been targeted.
There was however a contractual term that the tenants had agreed to which limited the number of cars to be parked on the driveway. It was not an arbitrary term. The landlord had a reasonable basis for the requirement.
It is difficult for the tenants to prove that the reason or a major reason for their cars being targeted was because they were on the street. Thieves also break into and steal cars parked on driveways. I am not satisfied that the tenants have proved a sufficiently close causational link between the landlord’s requirement and the damage they suffered.
For these reasons, the tenants claim for compensation is dismissed.

Tenancy Tribunal case 4765577 — Property damage

At a glance

Tenancy Tribunal case 4765577 — Property damage

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