What was Tenancy Tribunal case 4775797 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,720.00 ([Bond number suppressed])

How much money was awarded in case 4775797?

Property Damage: $50.00 awarded to landlord

What type of tenancy dispute was case 4775797?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4775797?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10887570-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4775797 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,720.00 ([Bond number suppressed])

How much money was awarded in case 4775797?

Property Damage: $50.00 awarded to landlord

What type of tenancy dispute was case 4775797?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4775797?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10887570-Tribunal_Order_Redacted.pdf.

177A Mitchell Street, Brooklyn, Wellington 6021 Tenancy Tribunal Case 4775797 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4775797. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
n for lack of shed Exemplary damages breach s38 Compensation for stress Compensation for carpet damage Reimbursement of	$50.00		n for lack of shed Exemplary damages breach s38 Compensation for stress Compensation for carpet damage Reimbursement of

Claims and awards in Tenancy Tribunal application 4775797. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
n for lack of shed Exemplary damages breach s38 Compensation for stress Compensation for carpet damage Reimbursement of	$50.00		n for lack of shed Exemplary damages breach s38 Compensation for stress Compensation for carpet damage Reimbursement of

Order

The Bond Centre is to pay the bond of $2,720.00 ([Bond number suppressed]) immediately to [The tenant/s].
Mary Fisher must pay [The tenant/s] $4,070.44 immediately in accordance with the table below.
All other claims are dismissed.

Reasons

Both parties attended both hearings of these claims.
The tenants initially applied, 1 among other matters for a direction that they be allowed to continue to reside at the tenancy as they said the landlord was 1 4 January 2024 attempting to evict them unlawfully. The application suffered delays and did not come before the Tribunal for hearing until 29 July. Over that time the tenants gave notice 2 and the tenancy ended. 3
The tenants subsequently amended their claims to seek redress for the way the landlord interacted with them over the last portion of the tenancy.
Just prior to the hearing, despite having been served with the application months prior, Ms Fisher sent in a list of her claims. These were not filed properly 4 but were heard with the tenants’ claims in the interests of justice. 5
This decision therefore covers all claims which were heard in evidence over two hearing days. Not all evidence has been referred to in the decision for brevity reasons as there is a substantial amount, however the parties can be reassured it has all been considered. I thank the parties for their patience in awaiting this decision and apologise for the time it has taken me to issue it; there has been a considerable amount of evidence to consider.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”, meaning more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [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.”
On the issue of evidence, the tenants submitted screenshots of derogatory comments regarding Ms Fisher from the internet. They say this supports their contention that she is unprofessional in her dealings as landlord. Ms Fisher argues that the Tribunal should not accept such evidence because of its lack of credibility.
Section 97(4) of the Residential Tenancies Act 1986 (RTA). states that the Tribunal may call for and receive as evidence any statement, document, 2 21 March 2024 3 19 April 2024 4 In accordance with section 86 RTA 5 Pursuant to section 85 RTA information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law. This is on the basis that the Tribunal is able to assign relevant weight to evidence.
I accepted these documents as I am entitled to do, but gave them very little weight. It is the matters between these parties that I am concerned with, not how others view Ms Fisher.
The questions for the Tribunal are: a. What is the status of the tenancy agreement? b. Did the landlord attempt to terminate the tenancy unlawfully? c. Did the landlord act in a retaliatory way? d. Did the landlord contract in an attempt to contravene the law? e. Was the rent increase lawful and how much rent is owed? f. Did party act unlawfully with respect to the viewings? g. Did the landlord breach the tenants’ quiet enjoyment? h. Should an agent have been assigned? i. Should compensation for stress be awarded? j. Have the tenants breached the RTA? k. How should the bond be distributed? Background
This tenancy of this semi-detached home commenced in 2022 when the then fixed term was assigned, with Ms Fisher’s agreement, to these tenants. They later agreed to extend the fixed term to 31 January 2024.
The following is the title plan of the property (this is “flat 1”):
Ms Fisher lives 70 metres down the road from the property and owns and manages the Flat 2.
In December 2023 Ms Fisher asked the tenants if they wished to renew the fixed term for a further year. As they did not want to be contracted in for a further year, they advised her that they would like the tenancy to become periodic. Ms Fisher did not agree.
Ms Fisher then commenced advertising the property although the tenants maintained they would not be vacating on 31 January.
Ms Fisher issued a 14-day notice to remedy on 3 January for the tenants to cease parking in the driveway and remove their “addition” meaning their garden shed. On 18 January she issued a further 14-day notice to remove the dog. The tenants responded by issuing their own 14-day notice for Ms Fisher to cease breaching their quiet enjoyment.
In response Ms Fisher issued a 14-day notice for the tenants to leave on 31 January. The tenants had by this time (4 January) applied to the Tribunal for relief, particularly with respect to the end of the tenancy.
When the tenants did not vacate on 31 January, Ms Fisher provided them a new tenancy agreement for a periodic tenancy. They did not sign this as they considered one had commenced anyway.
The tenancy ended on 19 April by tenant notice.
The first question to be addressed for both parties is the status of the agreement. This is because Ms Fisher contends it ended by agreement on 31 January and the tenants are of the view it rolled over into a periodic tenancy on 1 February.

What is the status of the tenancy agreement?

The tenancy agreement between the parties commenced by way of an assignment from the previous tenant. To that end a document headed Assignment Agreement was drafted. It states, summarised as follows: i. The previous tenant’s fixed term tenancy dated 31 January 2022 is to be assigned to the new tenants from 19 June 2022 until 31 January 2023. ii. The new tenants agree to pay the bond and rent. iii. The landlord and the new tenants agree to extend the term of the tenancy agreement by a further 12 months (i.e. a term of 19 months), with a new termination date of 31 January 2024. iv. The outgoing tenant, the new tenants and the landlord all signed and dated the agreement on 30 May 2022.
They also signed a new tenancy agreement prepared by Ms Fisher. It is a standardised agreement with Ms Fisher’s amendments. It states, summarised (the italicized are Ms Fisher’s amendments to the standard form): i. The fixed tenancy shall commence on continues on 19/6/2022. ii. This tenancy is for a fixed term, cannot be terminated not broken with notice and will terminate on 31/1/24 and on 1/2/24 a new fixed tenancy can be commenced.
Ms Fisher submits that this agreement means that the tenancy was to either end on 31/1/24 or be replaced by another fixed term tenancy. She says these were the only two outcomes possible on 31 January 2024 by virtue of what the parties had specifically contracted for.
The tenants submit that Ms Fisher trying to enforce either outcome (ending on 31 January or another fixed term) was defeating their right pursuant to section 60A RTA. This they say is a prohibited transaction pursuant to section 137 of the RTA.
For clarity, section 60A states as follows:
The tenants wanted the tenant to roll over into a periodic tenancy pursuant to section 60A(1).
Ms Fisher states that the agreement the parties had in fact complies with this section, in particular subsection (2)(b): the parties agree not to continue with the tenancy. She submits that the agreement they had for the term to terminate on 31 January 2024 6 means that they had already agreed not to continue the tenancy after that date.
She says the Assignment Agreement was drafted by either the previous tenant or [Tenant 1] and she was forced to sign it. She submits that the tenants ought to be kept to the agreement they signed.
Firstly, I note that a residential tenancy assignment means pursuant to section 2 of the RTA, a transfer to a person of all of the rights that a tenant has under a tenancy agreement. If the parties had only signed the Assignment Agreement, the original tenant’s tenancy in its entirety would have transferred to these tenants.
However, they signed in addition, a new tenancy agreement. That document was signed later than the Assignment Agreement and therefore takes precedence. Accordingly, this tenancy was not so much an assignment but a new, replacement tenancy.
Either way, the fundamental term of the agreement the parties had was that it was fixed until 31 January 2024.
The tenants had a right pursuant to section 60A(1) of the RTA for their fixed term tenancy to become periodic upon its expiry. Tenants are not entitled to contract out of their rights under the RTA by section 11(3) RTA. This means they could not give up that right even if they expressly contracted to do so.
Further, if I was to accept Ms Fisher’s argument that the parties agreed to one of two outcomes on 31 January, then that would mean that any fixed term tenancy agreement was an agreement to end the tenancy upon the contract expiry and as such section 60A would be redundant. For this reason, before the expiry 7 cannot mean at the beginning of the tenancy. It is clearly the intent of this section that any agreement about the continuation or replacement of a fixed term tenancy must come towards the end of the tenancy.
Accordingly, I am satisfied of the following: i. The parties had a fixed term tenancy due to end 31 January 2024. ii. They did not agree to renew or extend the existing tenancy agreement. 8 6 Clause 3 of the Assignment Agreement 7 Section 60A(2)(b)RTA iii. They did not agree to not continue the tenancy. 9 iv. Neither party had given notice before the expiry to end the tenancy. 10 v. Therefore pursuant to section 60A(1) RTA, from 2 February the tenancy continued as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms were consistent with a periodic tenancy.
Ms Fisher argues that she had to have a signed tenancy agreement to provide her insurance company and the fact they did not have a signed tenancy agreement for the period after 31 January jeopardised her insurance, it was for this reason that she took the steps she did as discussed below. Whatever her insurance company requirements, section 60A(1) of the RTA meant that the parties had a periodic tenancy from 1 February 2024.

Did the landlord attempt to terminate the tenancy unlawfully?

The tenants submit that Ms Fisher attempted to end the tenancy unlawfully in contravention of section 60AA of the RTA which states: 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.
They say she did this by: i. Categorically stating she would not agree to a periodic tenancy. 11 ii. Withdrawing her consent to the dog being allowed on the property which the tenants feel was Ms Fisher using their dog as a way to exert pressure on them to leave the tenancy. This is discussed elsewhere. iii. Issuing a 14-day notice 12 to “agree to a new mutually agreed contract or please leave the property”. Also saying it would be “unlawful to be on my property” after 31 January. iv. In multiple emails advising them that the tenancy would terminate on 31 January. 8 S60A(2)(a)RTA 9 S60A(2)(c) RTA 10 S60A(2)(c)&(d) RTA 11 Email 31 December 12 January 18th v. Noting the Wellington City Council (WCC) was aware the tenancy would end on 31 January. 13
Ms Fisher defends this claim saying she never issued the tenants with notice to vacate, nor did she take steps to have them removed when they remained after 31 January.
Although Ms Fisher did attempt to pressure the tenants to leave on 31 January or agree to another fixed term, this does not amount to providing a notice to terminate a tenancy. Section 60AA is available in situations where a notice has been given (or the landlord has applied to the Tribunal). Accordingly, this claim is dismissed however I consider Ms Fisher’s actions in this regard under the tenants’ claim relating to harassment below.

Did the landlord act in a retaliatory way?

The tenants submit that Ms Fisher acted in retaliation to their refusal to enter a further fixed term tenancy in the following ways: a. By issuing the 14-day notice directing they no longer park on the driveway on 3 January. They say they had parked this way for the duration of the tenancy, and it had never been complained about prior. This meant that for the last three months of their tenancy they could not use the parks they had previously used which was a serious inconvenience to them. They say that the previous tenant parked where they did and so they assumed it was agreeable to do so, and they were never told not to. b. By issuing a 14-day notice to remove their shed. c. By issuing a 14-day notice on 18 January to remove their dog. The parties had previously agreed on 22 January 2023 that the tenants could have a dog and as such he was part of the tenancy.
Ms Fisher’s evidence in response is summarised as follows: a. She says the neighbours had lived there for years and complained to her regularly about these tenants. She says they had no permission to park in the driveway and provided photos that she says establishes that they parked in a way that impeded driveway use. The reason she issued the notice when she did is that she had tried to ignore the issue previously rather than raising conflict but realised that if these tenants did not leave when she expected them to 14 , the issue would exacerbate. b. The shed was an unlawful fixture and impeded a fire exit. 13 Email 15 January 14 31 January c. This notice was issued because the dog was creating problems with the tenancy.
The evidence establishes that the parking 14-day notice was disingenuous of Ms Fisher and more likely than not issued in response to the tenants asserting their rights. It had been the usual practice within the tenancy for the tenants to park where they did, and I find an implied condition of the tenancy given it had not been raised earlier by Ms Fisher.
Ms Fisher’s revocation of this implied condition was unnecessary and unlawful. The way they parked did not impede driveway access as it is a large wide driveway. I find compensation of $500 for the three months the tenants could not park as usual justified.
I consider the issues with the shed below in my discussion on Ms Fisher’s claims.
I make similar findings with respect to the dog. Ms Fisher had agreed that he be part of the tenancy, 15 the tenancy continued and her attempt to have him removed was an unlawful revocation of agreement. I discuss this issue further below.
Whilst these actions were breaches of the tenants’ quiet enjoyment as discussed below, they were not retaliatory notices as submitted by the tenants pursuant to section 54(1) RTA. Section 54 covers situations of a landlord giving a tenant notice to end the tenancy, which was not done here.

Did the landlord contract in an attempt to contravene the law?

The tenants submit that Ms Fisher attempted to evade the RTA in the following way: a. By sending them a 14-day Notice 16 to either sign another fixed term tenancy agreement or vacate the property by 31 January 2024. b. Reneging on the agreement to have a dog and sending a 14-day Notice 17 to rehome the dog. In January 2023 an Addition to the Tenancy Agreement was signed by both parties allowing [redacted] the dog to live at the property “for the duration of the tenancy”. c. Requiring them to remove their shed. d. Requiring them to stop parking on the driveway. 15 By written agreement signed 19 and 22 January 16 18 January 2024 17 On 18 January 2024
No person may require another to enter into any transaction, contract or arrangement, or do anything: 18 a. that contravenes, or will contravene, any provision of the RTA; or b. for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A RTA.
Ms Fisher did attempt to require the tenants to enter into a fixed term tenancy when they were not legally required to, as discussed above. The tenants did not acquiesce to her demands, but Ms Fisher certainly attempted to have them evade their rights pursuant to section 60A(1) of the RTA.
The reneging of the agreement to have a dog, and the implied conditions to have a shed and park on the drive (as they had not been raised previously) are not specific contraventions of the RTA, but more contract default. I deal with those issues elsewhere.
I find that Ms Fisher did attempt to require the tenants to enter into an unlawful transaction which is an unlawful act. I do not find she was acting intentionally however because she (mistakenly) believed they had an agreement for a further fixed term. Accordingly, I do not make an award of exemplary damages for this breach of the RTA.
The tenants have included previous decisions against Ms Fisher, one of which 19 clearly points out unlawful sections of her then tenancy agreement and notes that she is on notice. This situation is different as the tenancy agreement itself did not contain unlawful sections, but Ms Fisher attempted to enter into an unlawful agreement.

Was the rent increase lawful?

Pursuant to section 24 of the RTA a landlord must give 60 days’ notice of a rent increase. 20 Here Ms Fisher argues that the rent increased from $680 to $730 on 1 February 2024 as that is the day after the fixed term tenancy ended. The tenants did not pay this increase saying it was unlawful and seek compensation/exemplary damages for the breach of the RTA. Ms Fisher seeks rent arears being the difference in arrears from $730 to the rate paid being $680. 18 See section 137(1) RTA. 19 [2021] NZTT Wellington 4299612 paragraphs 19-22 20 Amongst other requirements
Ms Fisher submits that in 2023 she advised the tenants that if the property remained available upon the expiry it would not be at “2022 rates” i.e. $680. She advertised the property in November 2023 at $699, then December at $720 and in January at $730. On 4 January she emailed the tenants and told them that on 1 February the rent would increase by $50 per week if they remained at the home. She then gave them the periodic tenancy agreement at a rate of $730.
Section 24 of the RTA is very specific as to how a rent increase can be established. It must be in writing, with the amount and date clearly specified, it must give 60 days’ notice and not be within 12 months of the last increase.
Ms Fisher did not comply with the provisions of s24(1)RTA. She is a seasoned landlord and is well aware of how to issue a rent increase. I accept she was under the (mistaken) impression the tenancy would end and so a new tenancy at a higher rental could be implemented, however a mistaken interpretation of the law does not render such irregularities, lawful.
Accordingly, the attempt to increase the rent was unlawful and there are no rent arrears due.
I do not consider any monetary awards in the tenants’ favour justified as I am satisfied that Ms Fisher was not attempting to evade her obligations under s24 but was simply mistaken as to her understanding of the law regarding fixed term tenancies. The tenants have not paid the increased amount and awards are made elsewhere relating to the stress they suffered as a result of these interactions.

Did either party act unlawfully with respect to the viewings?

Ms Fisher claims the tenants have not allowed her entry to the premises for the purpose of showing the property as she was entitled. The tenants say Ms Fisher was unduly invasive in demanding viewings.
On 31 December Ms Fisher advised the tenants she would be advertising and requested seven viewings in eight days. Only one occurred for various reasons.
There were considerable emails between the parties regarding the viewings in January. The tenants set time frames that would suit them which were multiple but did not work with Ms Fisher’s preferred times. The tenants’ main conditions were that Ms Fisher give them 48 hours’ notice and the viewings were held between 5 and 7 pm. They did make some exceptions to these conditions. Ms Fisher says this was unreasonable.
These communications need to be considered in the light of the situation at the time. Ms Fisher was attempting to end the tenancy on 31 January and the tenants were attempting to assert their rights for it to continue. The tenants had clearly advised Ms Fisher they would not be vacating on 31 January, therefore there was no need to advertise. The legal situation is that there was no end date for the tenancy. Accordingly, the tenants considered the viewings unnecessary given the tenancy was not ending.
There were further viewings in March and April. For these the tenants requested they only be held after 5pm on Mondays, Tuesday and Wednesdays with 48 hours’ notice. Ms Fisher was not happy with this as she works afternoon and evening shifts and did not want to show the property in the dark for safety reasons. She asked to show the property between 11 and 1.30 on weekends which the tenants agreed to. They did refuse one viewing on a Sunday which was to be their last day in the tenancy and some week daytime visits but allowed others.
Mary Fisher references the Tenancy Services website which says a tenant can set reasonable conditions. For example, they may limit access to certain times of day or days of the week. She submits that the ‘or’ used in this sentence means that tenants can do one or the other, but not both. This is an incorrect interpretation.
A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA. Specifically for the purpose of showing a property, a landlord may enter with the prior consent of tenants 21 and the tenants may not unreasonably withhold their consent but may make their consent subject to reasonable conditions. 22
Considering the tenants’ actions as a whole, I find they have acted reasonably. The conditions they set were reasonable however they also allowed times outside of their preferred times when requested. The added complication here was the dog, therefore the tenants wished to be home when viewings were held. It must be remembered that this was their home, Ms Fisher was entitled to show it to others but only in a way that did not unreasonably breach their privacy.
Similar findings were made in another case Ms Fisher was involved in with tenants at the same property. 23 The learned adjudicator found in that case 24 that “The relationship between the parties has disintegrated, there is significant conflict....the tenants tried to limit their interaction with the landlord to be within reasonable limits and frequency which was not unreasonable.”
I consider this situation analogous and concur with the adjudicator’s findings. Ms Fisher was demanding with respect to these viewings and sent a number of 21 S48(3) RTA 22 S48(3A) RTA 23 [2021] NZTT Wellington 4261738, 4267986 24 Paragraph 168 unnecessary emails about them. Accordingly, Ms Fisher’s claim is dismissed, and the tenants’ concerns considered below. Did the landlord breach the tenants’ quiet enjoyment?
The tenants submit that Ms Fisher breached their right to quiet enjoyment of the property in the following ways (and the ways discussed above): a. Ms Fisher was often on the shared driveway which is right outside their living room, without giving them notice. When [Tenant 2] asked Ms Fisher on 3 July 2023 to give them a “heads up” when she intended to come over to the property, Ms Fisher categorically refused. b. Telling them to remove their shed and stop parking on the drive despite allowing those situations to persist throughout the tenancy without complaint, i.e. reneging on implied contracts. Then continuing to complain about their use of the driveway and the shed even after they had complied with her 14-day notices regarding them. c. Advising them the tenancy was ending on 31 January and conducting viewings even though they had told her they would not be vacating. d. By saying she was “copying in the Authorities” to her 18 January 14-day notice to leave. e. By ignoring their 14-day notice 25 asking her to “abstain from emailing us about our tenancy dispute and limit your communication to only necessary and lawful landlord responsibilities when required as outlined by the Residential Tenancies Act 1986. f. On 31 January she attended the property twice without having given notice to do so. g. By sending an email on 31 January saying: “if you remain at 177A...it will be a new tenancy ...and you will be consenting to the new rate of $730 per week. However, I cannot agree to your dog being in the new tenancy.” h. Sending an email in the early hours of a Sunday morning noting that she had seen they were still up. i. By making false accusations about their dog’s behaviour. j. Accusing them of installing a satellite dish that had been in place the duration of the tenancy. k. On 29 February issuing a 14-day notice seeking a breakdown of their Tribunal claims. 25 18 January l. Taking photos of their dog on 3 April. m. Between 29 December and 29 February Ms Fisher sent [Tenant 1] 62 emails, at times sending multiple emails when he did not immediately respond to her. In 14 of those emails she asked for an immediate response. n. A lengthy email on 29 February to [Tenant 1] detailing his ‘failings’. o. The general tenor of emails being frequent, often long and at times rude, such as: i. You have been difficult as tenants 26 ii. Harassed me and the neighbours by your actions and inconsiderate behaviour. 27 iii. You are so entitled.
The tenants gave evidence detailing how Ms Fisher’s actions had a detrimental effect on their emotional health causing them to take sick days, miss events and seek medical attention.
Ms Fisher’s evidence in response is: a. She does not have to give notice to come to the outside area of the property and she is entitled to visit the neighbouring property. b. The tenants had been unreasonable and breached the law and she was entitled to raise her concerns with them. c. When she realised the tenancy may continue on after the 31 st she considered she needed to address their breaches (having an unlawful shed and parking on shared property, i.e. the driveway) before they went on much longer. d. She had thought the tenancy was ending on the 31 st . e. She was entitled to ‘copy the Authorities’ meaning the Tribunal to emails regarding breaches of the RTA. f. She had to communicate with them regarding the tenancy. g. She had thought they had installed the satellite dish. h. She was entitled to know what they were taking her to the Tribunal for. i. The photos taken of the dog were to be used for an advertisement and the dog being in them was incidental and unintentional. j. She had to come over on the 31 st as she was unsure if they were intending to leave or not. 26 18 January 27 18 January
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) RTA.
Section 38(1) RTA is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights (such as to carry out maintenance or inspections) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out their obligations, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.
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. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
Having considered the evidence very carefully, I make the following findings: a. Ms Fisher did not lawfully need to give notice of her intention to enter the property (provided she did not come inside) but if she was doing so regularly, she should have advised the tenants given the drive is right next to their living room. b. It was invasive for the tenants to have Ms Fisher taking photos of their home from the driveway which included one of their dog, without having been previously advised of what she was doing. c. The email of 29 February was disrespectful and unnecessary. Many of Ms Fisher’s emails were unnecessarily combative 28 and harassing. Saying she was ‘copying in Authorities’ is threatening. 28 For example her emails (13 April) regarding the heat pump assigned blame rather than adhered to her responsibilities. d. Sending 60 emails in as many days and her demand for immediate responses was unnecessary. e. Sending an email about early morning movements caused the tenants concern about their privacy given the disharmony in their relationship. f. The 14-day notices to cease well-established practices were clearly retaliatory.
In summary, I find it established in evidence that that Ms Fisher breached section 38 of the RTA to the extent of harassment. This is a high threshold, but it has been met here. She was clearly unhappy with the tenants’ refusal to sign a new fixed term and has shown her unhappiness in a myriad of ways.
Ms Fisher has therefore committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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) RTA.
Ms Fisher is a seasoned landlord and well aware of the law and where to get information if she is unsure. She has defended similar claims previously and makes her own claims on the same basis. I am therefore satisfied that this unlawful act was committed intentionally.
In considering an award of exemplary damages I note the following: a. Ms Fisher has acted deliberately and continually over a number of months. b. Her actions have had considerable effect on the tenants who have suffered to the extent of their health being impacted. c. It is in the public interest that landlords respect the rights of their tenants to live in peace without harassment and interference.
Taking into account all of the above I find an award at the higher end of the spectrum justified and award $2,000 for this breach.

Should an agent have been assigned?

Pursuant to section 16A of the RTA a landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. Ms Fisher was away from Wellington February to April. The tenants were unaware whether she was overseas or not and so asked her if she would be appointing an agent whilst she was away.
Ms Fisher did not respond to their questions and says she told them she would be tramping in New Zealand over this period, the year before. The tenants do not remember this conversation.
It was unfortunate that the matter could not have been resolved by Ms Fisher responding to their initial email as this failure has aggravated their relationship. I accept her evidence that she was not overseas and therefore find she did not breach section 16A of the RTA.

Should compensation for stress be awarded?

The tenants have provided credible evidence that the events of January and February particularly have been incredibly stressful for them. They were unsure whether they would be evicted without notice. They had to deal with many unsettling emails and interactions. They were being pressured to accept an unlawful arrangement and various agreements were being reneged on. For this they seek compensation.
Ms Fisher’s defence is that this was also an incredibly stressful time for her, and it was the tenants’ behaviour that caused the stress, along with it being a stressful time of their lives as they were trying to buy their own home. She considers the situation as caused by the tenants. I do not agree.
The Tribunal has the authority 29 to award damages for stress and inconvenience. It does so on the basis that the law of contract allows such damages where the purpose or one of the purposes of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate.
As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth and a tenant must expect some disruption or inconvenience from to time to time. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully. Commonly there is disagreement and negotiation and often this is because of disagreement over rights and obligations. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
Ms Fisher here has breached her obligations in a variety of ways. Stress and anxiety to those breaches were an obvious corollary, particularly when they 29 77(2)(n) RTA repeatedly pointed out the law to Ms Fisher, to no end. I have found that Ms Fisher in her actions intentionally harassed these tenants and did not allow them to enforce their rights under the RTA.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages. Those amounts have been increased in the 2022 Tribunal case A v Singh 30 to take into account inflation: “A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Adopting that formular, I consider this a serious situation of stress, tension and anxiety. As such, I find that an award of $1,500 is reasonable in the circumstances. Separate landlord claims

Have the tenants breached the RTA?

Ms Fisher has filed a number of claims against the tenants. I consider them separately below bearing in mind that she, as applicant, has the evidential burden of proof for each claim.

Did the tenants disturb their neighbours?

Mary Fisher claims the tenants have disturbed their neighbours being their immediate neighbours and herself as an occupant of the neighbourhood.
A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) 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 40(3A)(d) and Schedule 1A RTA.
Regarding the immediate neighbours she gives the following examples: a. In July 2023 there was an incident between the tenants and their neighbours. The tenants called the Police. 30 [2022] NZTT Auckland 4315225 b. Inconsiderate parking as their cars jutted out into the driveway. c. A visiting dog attacking the neighbour. d. They locked their cat in the garage.
The evidence from the neighbours only demonstrates issues with parking by the garage (a very small space) and not on the driveway. This was resolved between the tenants themselves. Ms Fisher says she had numerous complaints from the neighbours but the one email she submits from them does not substantiate this allegation.
Regarding herself, she says they shouted at her and followed her onto the street on 31 January, told her she was not allowed to walk down the driveway without permission, laughed at her when she raised issues, filmed interactions with her without her permission, failed to attend mediation with her, harassed her about her travel, allowed their dog to jump all over her and did not sign the new tenancy agreement.
Having seen the video of the event on 31 January I do not accept that [Tenant 1] harassed Ms Fisher. He was attempting to give her some documents which she did not accept, and he did not follow her, nor did he shout at her. Ms Fisher’s oral evidence on this interaction was also contradictory as at one point she said he followed her down the street, and at another that he was just on the drive.
Ms Fisher made much of the fact that the tenants’ claims were set for hearing rather than mediation; she took this as the tenants not being willing to discuss and settle matters directly with her. As discussed repeatedly at the hearing, Tenancy Services made the decision not to allocate a mediation but rather progress the claims to hearing. This process decision in no way reflects on the tenants’ desire. I consider they have acted with dignity and respect throughout this difficult time.
As they were party to the conversations the tenants were entitled to record them although it would have been better had they told Ms Fisher they were doing so. There is no evidence the tenants allowed the dog to act inappropriately or in a way that intimidated Ms Fisher. They were also entitled to ask her if she was going overseas given she had told them she would be uncontactable for a period.
The tenants have provided a previous case between Ms Fisher and the tenants at this property. 31 In that case Ms Fisher alleged the same thing of those tenants. The adjudicator found 32 that the parties were not neighbours 31 [2021] NZTT Wellington 4261738, 4267986 32 At paragraph 150(d) given the distance between the properties. Although I am not required to follow other Tribunal decisions, I agree with this one for the same reasons.
Therefore, this claim is dismissed for the following reasons: a. No evidence of the tenants harassing their direct neighbours was provided. b. Ms Fisher is not a ‘neighbour’ to these tenants. c. Even had she been, I do not find the claims of harassment substantiated in evidence.

Were the tenants required to pay their rent by automatic payment?

Ms Fisher claims exemplary damages for the tenants’ failure to pay their rent by automatic payment (AP) as they had contracted to do by their tenancy agreement.
The tenants say that as soon as it was pointed out to them that they had not set up an AP, they did so. This was an error they made unintentionally.
Pursuant to section 2 RTA, a tenancy means the right to occupy a premise in consideration for rent. Section 23 of the RTA states that a landlord shall not require the payment of any rent more than 2 weeks in advance or before the expiry of the period for which rent has already been paid.
There is nowhere in the RTA that states that a landlord may dictate how rent is paid. As such I am not satisfied that a landlord is entitled to direct in what form rent is paid. They are entitled to it in advance if that is contracted for in the tenancy agreement as that is provided for in the RTA. However, how it comes to them in advance (i.e. by AP or separate payments) is not a factor they can dictate. I appreciate that it is easier for landlords administratively if tenants do pay by AP, but it is not a lawful requirement of tenants.
Ms Fisher argues that the tenants were required to pay by AP by virtue of their contract which should be upheld. However, as stated, contracts that evade the RTA are not enforceable. 33 This claim must therefore be dismissed.

Did the tenants impede a fire escape?

Ms Fisher claims that the tenants impeded a fire escape by erecting their shed next to a gate the adjoining property was to use in the case of a fire. She says that the gate had to be installed so that the neighbouring tenants had a route to 33 Section 11 RTA escape from fire as their kitchen was on the corner of the property next to the garage.
The tenants say they were not aware this was the case and had they been told, they would have moved the shed which they did as soon as it was raised. It had been in place since March 2023.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. 34 The definition of “means of escape” 35 in relation to a building,—(a) means continuous unobstructed routes of travel from any part of the floor area of that building to a place of safety; and
At this point it is important to reiterate that the onus of proof lies with the person bringing the claim. It is the civil standard of “balance of probabilities “or “more likely than not” but it still has to be met. Ms Fisher has not established in evidence that the gate was a means of escape pursuant to the Building Act definition. The lock for the gate was on these tenants’ side, they have demonstrated it was not functional and more importantly, there appear to be many other routes the neighbouring occupants could use to escape in the event of a fire. This claim is therefore dismissed.
I find that Ms Fisher’s 14-day notice with respect to the shed was unnecessary and retaliatory. The shed would have been evident to her given she lived in the neighbourhood and to demand it be removed when the tenants were attempting to assert their rights is underhand. I dismiss Ms Fisher’s claim and award the tenants $100 compensation for not being able to use their shed for three months which was an inconvenience they have established in evidence.

Did the tenants unlawfully affix a fixture?

Ms Fisher claims that the shed was an unlawful fixture which the tenants did not have consent to erect. She says the shed affected four properties detrimentally because of its height and location (next to the fence and impeding the gate). They did not seek consent and it breached WCC bylaws. In support of this claim she submits a web print out stating that a building consent is required if “adding a building closer than the measure of its own height to any residential building or legal boundary (for example if your shed is 2 metres high, you’ll need a building consent to place it closer than 2 metres from your house).
Section 42 of the RTA states that a tenant may not affix any fixture to the premise, or make any renovation, alteration, or addition of or to the premises without consent. Fixture is not defined in the RTA but given is alignment in this 34 See section 40(2)(ab) RTA 35 Section 7 Building Act section with ‘renovation, alteration or addition’, I consider it is intended to mean a relatively major undertaking that is fixed to the property.
The evidence does not substantiate that the shed required consent. The web print out lists a number of things building consent is required for and all are substantial buildings, i.e. building a new home, building a garage. None are similar to erecting a small portable shed.
This shed was flimsy and unsecured. It could be erected and dismantled in a short space of time. I am not satisfied it is a “fixture” as defined in section 42. Accordingly, this claim is dismissed.

Have the tenants used the property unlawfully?

Ms Fisher seeks $1,800 saying the tenants used the property unlawfully and continued to do so repeatedly when told not to. Property rented out cheaper per week with no garage and so no carparking. These tenants failed to respect and did damage further to driveway.
Ms Fisher has not explained nor substantiated how the tenants allegedly used the property unlawfully and as such the claim is dismissed.

Did the tenant comply with their obligations at the end of the tenancy?

Ms Fisher claims compensation for having to deodorise the carpet ($20.98). She says the smell of dog was considerable and so she had to purchase deodorisers to spray on the carpet.
The tenants provided evidence that they deodorised and rug doctored the carpet before they vacated. I am satisfied on the evidence that this met their obligation to return the property reasonably clean and tidy. 36 There is no independent evidence that the property remained smelly after that. This claim is therefore dismissed.

Is the tenant responsible for the damage to the premises?

Ms Fisher claims the tenants inflicted the following damage on the property: i. The removal of a fence post topper. ii. Damage to grass from their dog. iii. Damaged net curtain. iv. Removal of three shelves from a cupboard. 36 Section 40(1)(e)(iii) RTA v. Carpet damage. vi. Missing mats. vii. Repair to laundry taps.
The tenants have consented to an order for $50 for damage to the carpet where a pot plant had leaked.
To be successful in a claim for compensation, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA. Fence post topper
There is a missing fence post topper. However, Ms Fisher has not established in evidence when it was removed. Further, the evidence shows that the fence is in worn state and other toppers are loose.
Accordingly, as it has not been proven that the damage was either caused during the tenancy or that it is in excess of fair wear and tear, this claim is dismissed. Grass damage
It is accepted that the grass died in several spots due to the dog. The tenants provided evidence of re-sowing the grass and showed a recent photo of the grass having re-grown.
Ms Fisher says she had to re-sow the grass and that is why it has regrown.
I accept the tenants’ evidence that they re-sowed the grass before they left. It is persuasive being time stamped photos. Ms Fisher may well have sown more grass seed on top of theirs. As such I am satisfied they have rectified the damage and compensation is not justified.
Even had they not, I find that the patches of grass are sufficiently small to be considered fair wear and tear. Ms Fisher agreed to a tenancy with a dog, she could therefore expect patches of grass dying where it urinates; that is fair wear and tear. This claim is dismissed. Net curtain
Ms Fisher has provided evidence of a net curtain with a pulled thread. She therefore seeks compensation for its replacement.
Net curtains have an expected life span of one year in New Zealand residential tenancies. This curtain well exceeds that. Further the damage is not considerable, and it can still be easily used.
This claim is dismissed.
Ms Fisher also claimed that the tenants breached section 40(1)(d) of the RTA by failing to notify her of this damage when it arose. This claim is dismissed. The issue was neither significant nor pressing and arose at the end of the tenancy. Missing shelves
Ms Fisher contends there were three shelves taken from the laundry cupboard. She seeks $325 for their replacement. The tenants say they did not exist during their tenancy.
Ms Fisher has provided no evidence to establish the existence of the shelves at the commencement of the tenancy which is her burden to establish. Accordingly, the claim is dismissed. Carpet damage
Ms Fisher has provided a photo of damage to the carpet at a join. She says this was due to the tenants’ dog.
The tenants have provided a photo of the carpet split when they first moved in. It is not as extensive as it is at the end, however it is similar damage. They say there was a mat over it when they moved in, so they did not mention it and say they kept the mat over it for the duration of the tenancy although agree that the split did increase.
I am satisfied that the damage is fair wear and tear. It is on a carpet join and was clearly there at the commencement of the tenancy and has just got worse over the tenancy as could be expected. This claim is therefore dismissed. Missing mats
Ms Fisher contends there were two welcome mats and one wool mat in place which have now been removed. The tenants say they left all the mats that were provided with the tenancy when they vacated.
Ms Fisher has not established in evidence that the alleged mats were in situ at the commencement of the tenancy as was her burden to do. Accordingly, her claim is dismissed. Laundry taps
Ms Fisher has had the laundry taps fixed and says the cost is the tenants’ as they must have damaged them when they removed their washing machine. The tenants noticed the tap was leaking when they disconnected their machine.
The evidence does not establish that the tenants carelessly or intentionally damaged the tap. The issue appears to be more likely one of fair wear and tear given the spindle (an inside component) was replaced. Accordingly, this claim is dismissed.

How should the bond be distributed?

Ms Fisher’s claims for rent arrears, compensation and exemplary damages have all been dismissed. Accordingly, the bond is to be returned to the tenants. Other
Finally, I consider it appropriate to give Ms Fisher a warning here. Pursuant to section 92A of the RTA, the Tribunal may strike out, in whole or in part, a proceeding if satisfied that it is frivolous or vexatious or otherwise an abuse of process. I seriously considered doing so here.
Ms Fisher filed 23 claims, increasing the number regularly up until the date of hearing. The majority of them had no substance and have been dismissed. Many of them appear to have been filed in retaliation. They extended the Tribunal’s time exponentially.
Ms Fisher did not comply with Tribunal filing times preferring to bring evidence to the hearing which was unfair on the tenants who had little time to consider it. She allegedly filed her cross application just days prior to the hearing despite having been served months prior. I say allegedly as Tenancy Services has no record of her doing so. Her extensive evidence was repetitive and argumentative.
Overall, I consider Ms Fisher’s behaviour in these proceedings to have been disingenuous. I have not struck out her proceedings under section 92A in this instance, but should she take similar steps in subsequent proceedings, the Tribunal’s response is likely to be stricter. Filing fee
The tenants were successful in the majority of their claims, accordingly I approve reimbursement of the filing fee to them. Ms Fisher does not appear to have paid a filing fee as it has not been received by Tenancy services. Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest.
The tenants have been successful therefore I direct suppression orders in their favour. I consider it in the public interest, as Ms Fisher has a number of properties she tenants, that her details be published.

At a glance

At a glance

Claims & awards

Dismissed claims

Order

Reasons

What is the status of the tenancy agreement?

Did the landlord attempt to terminate the tenancy unlawfully?

Did the landlord act in a retaliatory way?

Did the landlord contract in an attempt to contravene the law?

Was the rent increase lawful?

Did either party act unlawfully with respect to the viewings?

Should an agent have been assigned?

Should compensation for stress be awarded?

Have the tenants breached the RTA?

Did the tenants disturb their neighbours?

Were the tenants required to pay their rent by automatic payment?

Did the tenants impede a fire escape?

Did the tenants unlawfully affix a fixture?

Have the tenants used the property unlawfully?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

How should the bond be distributed?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

What is the status of the tenancy agreement?

Did the landlord attempt to terminate the tenancy unlawfully?

Did the landlord act in a retaliatory way?

Did the landlord contract in an attempt to contravene the law?

Was the rent increase lawful?

Did either party act unlawfully with respect to the viewings?

Should an agent have been assigned?

Should compensation for stress be awarded?

Have the tenants breached the RTA?

Did the tenants disturb their neighbours?

Were the tenants required to pay their rent by automatic payment?

Did the tenants impede a fire escape?

Did the tenants unlawfully affix a fixture?

Have the tenants used the property unlawfully?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

How should the bond be distributed?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions