What was Tenancy Tribunal case 4775024 about?

The tribunal order states: Compass Property Management Limited must pay [The tenant/s] $770.44

How much money was awarded in case 4775024?

Compensation: breach of quiet enjoym…: $300.00 awarded to tenant; Property Damage: $450.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4775024?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4775024?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10463010-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4775024 about?

The tribunal order states: Compass Property Management Limited must pay [The tenant/s] $770.44

How much money was awarded in case 4775024?

Compensation: breach of quiet enjoym…: $300.00 awarded to tenant; Property Damage: $450.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4775024?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4775024?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10463010-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4775024 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4775024 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$450.00	retaliatory notice
Compensation: breach of quiet enjoyment	$300.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Claims and awards in Tenancy Tribunal application 4775024 — net $770.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: retaliatory notice	$450.00	retaliatory notice
Compensation: breach of quiet enjoyment	$300.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$770.44
Total payable by Landlord to Tenant	$770.44

Order

Compass Property Management Limited must pay [The tenant/s] $770.44 immediately, calculated as shown in the table below.
The termination notice dated 11 December 2023 is declared to be invalid and retaliatory and of no effect.

Reasons

Both parties attended the hearing on 13 June 2024.
The tenant applied to the Tribunal on 4 January 2024. The tenant sought an order for repairs to the fence and for garden maintenance. The tenant also claimed exemplary damages for retaliatory notice. On 2 May 2024, the tenant amended her application to include compensation for breach of quiet enjoyment.
The landlord applied to the Tribunal on 12 February 2024. The landlord sought a possession order following termination of the tenancy. Background facts
A summary of the background facts is set out below: • The tenant has lived at the premises (a 1-bedroom unit) since 6 February 2021 pursuant to a periodic tenancy. The weekly rent is $370.00. • Ownership of the property changed sometime in 2023. The property was marketed for sale with 3 other 1 and 2-bedroom units on the same site, all of which have the same landlord. The advertisement said: “Currently returning $1,560 per week, savvy investors or developers will see the opportunity here to rent now and plan your future development...”. • The new registered owner is Sham84 Limited. One of the two director/shareholders of this company is Mr Sharma. • The tenant served notices to remedy on 22 September 2023 (black mould and blocked gutters) and 7 December 2023 (garden work and repairs to boundary fencing). The December notice also accused the landlord of ignoring requests for maintenance and not ensuring the health and safety of tenants. • The landlord was invoiced for cleaning the gutters on 10 October 2023. • The landlord was invoiced for cleaning mould in all 4 units on 20 October 2023. The cleaning in the tenant’s premises was to the ceilings in the kitchen, lounge, bathroom, behind the oven and fridge, and the toilet net curtain. • On 11 December 2023 the landlord served a 63-day notice of termination of the tenancy. The notice said the owner wanted the property for family to live in. The final day of the tenancy would be 12 February 2024. • On 2 February 2024 the landlord gave notice of a “routine inspection” of the property on 12 February 2024. • On 12 February 2024 the landlord served a notice on the tenant stating that she was in breach of the 63-day notice to vacate the premises. The notice said an application had been filed with the Tribunal. • The tenant wrote to the landlord on 5 March 2024. The tenant said that the property manager had come to the property on 12 February 2024 at about 10.30am: “...banging on the doors and windows demanding entry to the property. Insisting I should have vacated the property by his demands. You were aggressive and I felt threatened and scared...demanding he have access immediately to check the property and take the keys. You were aware of the upcoming tribunal hearing but ignored my rights and told me he was going to come back with a bailiff and have me thrown out.” Relevant law
Pursuant to section 45 of the Residential Tenancies Act 1986 (the Act) a landlord must provide and maintain premises in a reasonable state of repair and comply with any relevant legislation in relation to buildings, health, and safety.
Breaching these obligations is an “unlawful act” for which exemplary damages may be awarded.
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 (section 109(3) of the Act).
A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (section 38(2) of the Act). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded. 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".
A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family. The meaning of family is defined in section 2(1) of the Act and includes a person related to the owner by blood, marriage or adoption, a person who is part of the owner’s whanau, or any child who is being cared for by the owner.
Every notice to terminate a tenancy must be in writing, identify the premises to which it relates, specify the date by which the tenant must vacate, set out the reasons for termination, and be signed by the party giving notice. A notice will not be held invalid for failure to comply strictly with these requirements so long as the notice is in writing, the intention to terminate on a particular date or on expiry of a particular period is stated clearly, and any non-compliance is not such as to mislead or unjustly affect the interests of the recipient (section 51(3) and (4) of the Act).
A notice required to be served under the Act may be transmitted to the email address given by the tenant as an address for service (section 136 of the Act).
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or the Act, or by any complaint against the landlord relating to the tenancy (section 54(1) of the Act). Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. There is no need to consider the intent of the person in committing the unlawful act (section 109(3A)).

Was the termination notice valid?

The termination notice did not comply with section 51(3) because it did not identify the premises and was not signed by the property manager. Further, the notice was not emailed to the tenant’s address for service but to her daughter’s email address.
The tenant is elderly, and her daughter had become involved in issues relating to the tenancy. The landlord said they had always used the daughter’s email address for communications. The tenant confirmed that her daughter made her aware of the termination notice.
The failure to sign the termination notice did not mislead or unjustly affect the tenant’s interests. The tenant knew the property manager, whose name was provided in the notice, and had the ability to contact him.
I find that, despite the defects, the notice was not rendered invalid for failure to strictly comply with the requirements of section 51(3) of the Act. It was also brought to the tenant’s attention and therefore, in a practical sense, was served.
The further issues are whether an owner can rely on section 51(1)(a) when the owner is a company and whether the reason given was bona fide.
Mr Sharma attended the Tribunal hearing briefly and I used the opportunity to ask him some questions. He confirmed that his brother is in New Zealand pursuant to a 3-year work visa dated 27 July 2023. He still wants to accommodate his brother in the premises. While I have some doubts about the timing of the termination notice, as discussed below, I am prepared to accept that the reason given in the notice (accommodation for family members) was genuine.
The directors and shareholders of the company do not own the property. The directors are officers of the corporate personality which has ownership. There is Tribunal authority that companies and trusts who own properties cannot occupy premises as a place of residence, or have family members (for example, Balmoral Properties Ltd v Kelly, Tenancy Tribunal North Shore TT 699/99, 15 September 1999; Takeichi, Pittaway & Turner v Norcross Investments Ltd, Tenancy Tribunal Christchurch TT 204/02, 8 April 2003).
I find that a corporate owner cannot rely on section 51(1)(a) of the Act. The owner must be able to give a different reason for termination under section 51(1) and (2). This may sound like a technical distinction, but it is difficult to see how a corporate owner can have family as that term is defined in section 2(1) of the Act. Having chosen to structure the tenancy through a corporate landlord, the 63-day notice provision under section 51(1)(a) was not available to the directors and shareholders of the owner.
I find that the termination notice was invalid because the reason given for the notice did not apply and could not be relied on.

Was the termination notice retaliatory?

Mr Sharma said the company purchased the 4 units to redevelop them. When the residential market hit a downturn, he decided not to do so. He was not concerned about the tenant’s complaint about maintenance when he discussed the termination notice with the property manager.
The timing of the termination notice, on 11 December 2023, just 4 days after the tenant had issued a notice to remedy in respect of the fence and the garden, suggests the landlord was at least partly motivated by this exercise of the tenant’s rights. Indeed, the termination notice states: “Just an update regarding your last email: Landlord is planning to carry out garden and fence maintenance after his family move into the property”.
At the previous adjourned hearing, before a different Adjudicator, the Tribunal directed the landlord to disclose all documents relating to the owner providing occupancy to a family member prior to the termination notice on 11 December 2023. The only responsive document provided was the work visa. While it can be accepted that one of the owner’s directors wants his brother to live at the property, he does currently have accommodation. It is unclear why it was decided to serve a termination notice on 11 December 2023, as opposed to any other time (the work visa runs for 3 years) and no evidence has been provided to show when the decision to accommodate the family member at the premises was made.
A further factor which potentially weighs adversely against the landlord, in my view, is the way the property manager behaved after the termination notice had been issued (I discuss this further below). In my view, the zeal with which the property manager followed up on the termination notice may say something about the reasons it was given.
The tenant painted a picture of a landlord who was unresponsive to maintenance issues, and I consider this is also a relevant consideration. For example, the tenant served a notice to remedy, relating to mould and the guttering, on 22 September 2023. The notice stated that these issues had first been raised by text on 8 August 2023. In evidence the tenant said she had raised the issues before then. The two issues were not addressed until October 2023.
The tenant said her concerns about mould were dismissed and the landlord said it was the tenant’s responsibility to ensure proper airflow through the property. The property manager did say, in text messages in August 2023, that the tenant should keep the property ventilated and it was the tenant’s responsibility to clean the mould. However, he also said the gutters and mould spores would be cleaned. These matters were identified as being urgent in the tenant’s texts but were not addressed until October 2023. When the landlord did arrange cleaning, it is apparent from the invoice that all 4 units had mould to some degree, so it is unlikely the problems the tenant was having related merely to ventilation.
The tenant also referred to an email from the property manager on 9 October 2023 in relation to the mould and the gutters: “I have answered your emails and Please note we also have an obligation to take owners instructions and unfortunately he is not under the seriousness of this matter”. This email is difficult to reconcile with evidence at the hearing that the owner was willing to perform maintenance at the units, and it does suggest the landlord did not view maintenance as a high priority.
The notice to remedy on 22 September 2023 referred to the time taken for the landlord to respond to other issues, such as replacing mouldy net curtains (8 months) and repairing a power point (over 12 months). The invoices provided indicate these issues were addressed on 10 October 2023 and 30 August 2023, respectively. The landlord also replaced a broken clothesline on 23 April 2023. The overall impression is that maintenance was performed after varying levels of delay.
A letter of support was presented from the tenant’s former neighbours who lived in one of the other units. They also complained of a lack of response from the landlord about mould and dampness. They decided to vacate due to health concerns. (The landlord said these tenants had their tenancy terminated so the owner could accommodate an employee).
When I take all the evidence into consideration, while the landlord was probably not wholly motivated in giving the termination notice by the tenant’s notices to remedy, I am satisfied that this was part of the motivation. There was a level of unresponsiveness to the tenant’s concerns about maintenance including health concerns relating to mould, the termination notice was given very soon after the tenant had raised the latest of those concerns and accused the landlord of not complying with health and safety, and the landlord’s behaviour after the termination notice had been given may well reveal some of the motivation for ending the tenancy.
I declare the termination notice retaliatory and of no effect. It is not necessary to consider the intent of the landlord in committing the unlawful act for the purpose of awarding exemplary damages (section 109(3A)). The effect of the unlawful act has been to force the tenant, who has lived at the premises for several years and does not wish to leave, to apply to the Tribunal for relief. It has added to the frustrations in her dealings with the landlord.
The landlord needed to ensure that the notice met the applicable legal requirements and (whether it was also sent to the tenant’s daughter) was properly served. I do not criticize the landlord unduly for giving a notice which I have held was not open to a corporate owner, but at the same time there is a public interest in landlords only giving termination notices for which there are legal grounds and not in response to tenants exercising their rights. These factors tend to exacerbate the adverse effect of the retaliatory notice on the tenant.
Weighing up all these factors, I consider it would be just to award exemplary damages at the lower end of the range and award $450.00.

Was there a breach of quiet enjoyment?

Only the tenant’s evidence about what happened on 12 February 2024 was available. The property manager at the time was not called to give evidence.
For context, I note that the inspection notice on 2 February 2024 was emailed to the tenant’s daughter, again not using the notified address for service, and the tenant’s daughter says she did not receive the email. The tenant was therefore surprised by the landlord’s attendance, which may have contributed to what happened.
Accepting the tenant’s evidence, it is hard not to view the property manager’s conduct on 12 February 2024 as being unduly aggressive. The timing of this “routine inspection”, being the vacate-date specified in the termination notice, seems dubious. There is no obvious reason why a routine inspection would be required to be performed on that day. The landlord was aware from 4 January 2024 onwards that the tenant had filed an application with the Tribunal and that the termination notice was in issue.
The property manager seems to have scheduled an inspection for the last day of the tenancy as a means of checking that the tenant had left or was going to leave. He then tried to continue with the inspection even though the validity of the termination notice had been put in dispute. The property manager’s conduct at the inspection itself, referring to getting a bailiff to evict the tenant, was a breach of quiet enjoyment in those circumstances.
The breach happened once, and it was not especially serious. The property manager did not enter the premises. It was frightening for the tenant, partly because the landlord’s visit was unexpected. Given that the tenant had applied to the Tribunal, attempting to perform a final inspection was inappropriate. I award compensation of $300.00. Work orders
I understood that the issues with mould, gutters, the fence, and the gardens have been attended to by the landlord. There is no need for a work order. Filing fee and suppression
The tenant’s application has been largely successful. I award the filing fee.
I also grant name suppression as requested.

Tenancy Tribunal case 4775024 — Exemplary damages

At a glance

Tenancy Tribunal case 4775024 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Was the termination notice valid?

Was the termination notice retaliatory?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the termination notice valid?

Was the termination notice retaliatory?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions