Published tribunal order
Tenancy Tribunal case 4781306 — Exemplary damages at 27 Moira Street, Ponsonby, Auckland 1021
Decided 9 May 2024 · Published 9 May 2024 · Application 4781306
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s names and identifying details.
- The bond is to be refunded to the Ataya Reena Kanji, Laura Maxwell and Catherine Yen Ming Lee immediately from the bond centre.
- Dimetrios Stylianou, Kristen Stylianou and David Robert Smith are to pay Ataya Reena Kanji, Laura Maxwell and Catherine Yen Ming Lee the sum of $1270.44 immediately for exemplary damages and reimbursement of the filing fee, as calculated and set out below: DescriptionTenant Filing fee reimbursement $20.44 Exemplary damages s 38 $1000.00 Total awards $1270.44 Bond -$2,500.00 Total payable by Landlord to Tenant $1270.44
Reasons
- Both parties attended the hearing.
- This is a tenant application, claiming that the landlords have breached their right to quiet enjoyment and have unlawfully entered the premises. The tenants seek exemplary damages for these breaches, refund of the bond, reimbursement of the filing fee. Section 38 Residential Tenancies Act 1986 (RTA) Has the landlord breached the tenants’ right to quiet enjoyment of the tenancy? The relevant law – Section 38 RTA
- A tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or by any person claiming through the landlord. See section 38(1) RTA.
- A landlord must also 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) 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, as with this case, where the landlord’s rights (such as to conduct maintenance or renovations) 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 maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.
- Whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the work being conducted, and the length and degree of intrusion.
- Similarly, the landlord’s right to inspect the property is of its very nature an intrusion on the tenant’s right to quiet enjoyment but the tenant must allow inspections. It becomes a question of fact and degree in each case as to whether the manner of the inspection becomes an unreasonable interference.
- The Tribunal has also taken the view in the past that a personality clash or a difference of opinion does not of itself amount to a breach of quiet enjoyment. Whilst it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach.
- For a breach of either section 38(1) or 38(2), the usual procedure would be for the tenant to first ask the landlord to stop the offending activity and, if the landlord fails to do so, apply to the Tenancy Tribunal for appropriate orders.
- Finally, section 48 RTA is relevant in this case and sets out the specific notice a landlord is required to give a tenant in order to enter the premises in different situations unless the tenant consents. Importantly, the reference to “premises” in section 48 does not include land. Therefore, the notice provisions in section 48 do not apply when the landlord is simply entering the land. However, even when entering the premises including the land legitimately, a landlord must still be careful not to breach the covenants for quiet enjoyment contained in sections 38 and 45 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 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. Findings
- The tenants were advised on 29 November 2023 that the landlord was seeking to do maintenance on the property. On 15 December 2023, the tenants received a notice from the landlord advising that they were now selling the property and sought access to carry out the maintenance.
- The tenants say they were not told of the extent of the work to be conducted and what the maintenance entailed. The property manager had explained that there was to be exterior and interior painting but did not provide a breakdown of the work.
- Initially the tenants consented to the landlord having access to the property over two set periods of time, 1 to 14 January 2024 and 18 th to 20 th January 2024.
- There was a double garage attached to the house. The landlord had stored some of their property in that garage. The landlord claimed that the garage was not part of the tenancy, but all parties accept that the tenants were permitted to store some of their items in part of the double garage during the tenancy.
- The tenants claim that the landlord exceeded the time they had asked to be allowed on the property by turning up on 15 th and 17 th January 2024. Furthermore, that the landlord, on occasions would still be inside or outside the property till 9pm at night.
- The landlord denies being at the property on 15 and 17 January 2024 and says they were at a family function out of Auckland. However, the tenants and the property manager all clearly recall these occasions when the landlord turned up unannounced and without consent. The property manager recalled on 15 th January 2024 that he was at the property fixing a sink for the tenants. The landlords were outside in the garden with 2 children. The landlords asked the property manager to take a photo of them in the garden, which he did.
- Given the clear account the tenants and property manager gave about seeing the landlords on the property outside of consented periods, I prefer their evidence rather than the landlords.
- I find the landlords were on the property outside the periods of time consented too.
- There were three tenants in the property. Two attended the hearing and the other tenant had given authority for the other two tenants to represent her position in the hearing.
- During the hearing, the two tenants talked about the landlords still being inside the house on several occasions working until late in the evening. The landlords strongly deny that they were in the house after 7pm.
- The two tenants describe being in their home on 6 th January 2024 and the landlords still working in the living room at 8.00pm and remaining outside the house till after 9.00pm.
- One of the tenants talked about not having access to her bedroom until after
- 00pm on 7 th January 2024. On 8 th January 2024, the tenants say the landlords were still there until 8.00pm.
- I asked if we could speak to the third tenant on the telephone about her recall of this issue. Without knowing what had been said in the hearing, the third tenant independently volunteered the same information.
- I accept the evidence of all three tenants, that the landlords were at the property after 7pm on several occasions.
- The landlords relied on the claim that they were on the property and not in the house. They claim they are permitted to be on the land. While that is correct the argument becomes one of reasonableness.
- The landlords would park their car in the tenant’s driveway during the time they were carrying out maintenance. One tenant recalled a day when she was asked to move her car out of the driveway as the landlords needed to put their car in the driveway to collect items out of the garage.
- During this occasion, the landlords were recording the tenant in the driveway. The landlords claimed that they recorded the incident because things were deteriorating with the tenants and there had been a suggestion that a trespass notice could be obtained.
- The landlords set up a desk and a laptop in the garage attached to the house and would carry out work in there when they were not permitted to be in the premises.
- All three tenants claim that they felt anxious about the landlords being around the property all the time. Each tenant talked about the pressure having people in the home till late at night to be unbearable. One tenant said she was crying all the time, felt out of her depth particularly when tensions were rising with the level of intrusion they felt. She said she did not want to stay alone in the house with the landlords there. All three tenants stated that the level of disruption being caused to them was extreme.
- The landlords say that they hardly entered the interior of the house and when they did it was with consent and that initially they had an “open door policy” with the tenants.
- The consent given by the tenants was revoked on 11 January 2024. The tenants were all now moving out early and wanted peace until the end of the tenancy.
- On 12 January 2024, the landlords did not turn up to the property. The tenants say that from 13 th to 20 th January 2024 the landlords were at the property all the time. The landlords say they were at the property, in the garage, clearing out possessions. The garage was attached to the house and so the tenants would have been always aware of the landlord’s presence.
- For the reason set out above I find the landlords have committed an unlawful act by interfering with the tenant’s quiet enjoyment during the tenancy. The aggravating factors that lead me to this conclusion were working inside the house after 7.00pm and remaining outside the house until up to 9.00pm at night on three occasions. Coming onto the property on days they were not working, walking around the garden with children taking photos, and working in the garage when not permitted in the house, asking the tenants to move their vehicle out of their driveway and recording the tenant.
- I understand the points of view of the landlords that the house was to be sold and the work needed to be done. However, the tenants were leaving in a matter of weeks and had the right to peace and comfort in the home they were paying rent for.
- I find the tenants have suffered more than a temporary discomfort or inconvenience. Their reasonable peace and comfort have been breached and the level of intrusion was significant.
- I find the landlords has overstepped the boundaries of reasonableness.
- 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) Residential Tenancies Act 1986.
- The maximum penalty for an unlawful act under s 38 RTA is $3000.00. I award the tenants $1000.00 in exemplary damages for the landlord’s breach. Exemplary Damages – unlawful entry – s48
- The tenants claim the landlords have entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
- The landlords accept entering the property on occasions throughout the tenancy. However, they state that each entry was on notice or in a part of the property they can enter without notice to the tenants, such as the garage or the garden.
- I consider that notice must be given of an entry onto property, and that the entry must be for the purpose specified and not alternate purpose.
- In the present case, I consider the landlords exceeded the bounds of what they were lawfully entitled to do when they entered the premises.
- Section 48 provides that a landlord may not enter the premises unless one of the specified grounds is met. Section 48(4)(a) makes it an unlawful act for a landlord to enter the premises except in accordance with the Act.
- Accordingly, I find that the landlord 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 effect of the unlawful act on the tenants were to make them feel uncomfortable in their own home. I consider that there is a public interest in maintaining a tenant’s right to privacy within their own home.
- Further, there is a public interest in holding landlords to the strict requirement that entry into the tenant’s home is only undertaken for a lawful purpose, and with proper notice. Accordingly, I consider that an award of exemplary damages is appropriate. However, the facts and evidence given regarding the unlawful entry and breach of quiet enjoyment are so similar that a separate award is not warranted.
- For avoidance of doubt, I record that I have found the landlords breached their obligations and did unlawfully enter the property without notice and consent, but I am not awarding costs against the landlords. Section 13 Tenancy agreements must be in writing.
- The tenants claim the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
- A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
- The property manager was a friend of the landlords and not a professional property manager. He had been tasked to manage the property to help the landlords who reside overseas. The property manager stated in the hearing that he “dropped the ball” and did not provide any tenancy agreements for these three tenants.
- I find the landlords have 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) Residential Tenancies Act 1986.
- I accept that the property manager has failed to provide the tenancy agreement to the tenants. However ultimately the landlords are responsible for ensuring the property is managed in a professional manner.
- I award the tenants $250.00 in exemplary damages for the landlord’s breach. Bond, Suppression and filing fee:
- The bond is to be refunded to the tenants if it has not been done already.
- The tenants seek suppression of their names and details. As they have been successful, I will grant suppression.
- As the tenants have been successful, I must reimburse the filing fee.