Published tribunal order
Tenancy Tribunal case 4787526 — Exemplary damages
Decided 20 Sept 2024 · Published 20 Sept 2024 · Application 4787526
- Exemplary damages
Party names are redacted in the official published order.
Order
- [The landlord/s] must pay [The tenant/s] $1,045.30 immediately in accordance with the following table.
- All other claims are dismissed.
Reasons
- [The tenant/s] lived in this property between 13 February 2023 and 25 March 2024. The premise is [The landlord/s] home and is called [the property]. [The landlord/s] did not reside in the property during [The tenant/s] tenure until he moved back to New Zealand in mid-January 2024. From then he lived in the shed.
- [The property] has several rooms in the main house and two outbuildings which were occupied at various times. [The landlord/s] pays the outgoings and utilities which are covered in the occupants’ rent. All occupants have all signed ‘flatmate’ agreements, usually with him although sometimes with [The tenant/s] in his stead. Prior to his departure from New Zealand in early 2023, [The landlord/s] lived at [the property].
- On 9 January 2024 [The tenant/s] issued [The landlord/s] with a 14-day notice to remedy, claiming the following breaches of the Residential Tenancies Act 1986 (RTA): a. No written and signed tenancy agreement. b. No property manager. c. No compliance with Healthy Home Standards. d. No bond lodgement. e. Failure to prevent a breach of her quiet enjoyment. f. Issuing a termination notice as retaliation.
- [The landlord/s] returned to New Zealand after receiving this notice and issued a termination notice on 26 January. [The tenant/s] moved out in March by her own volition.
- [The tenant/s] has filed claims for compensation and/or exemplary damages for a number of alleged breaches of the RTA by [The landlord/s]. [The landlord/s] has cross applied for rent arrears.
- On 7 May 2024 the Tribunal made an order that this was a residential tenancy and as such the RTA applies to the parties’ relationship.
- This decision covers all remaining claims. Given the considerable amount of evidence filed there has been a delay in the issuing of the decision, and I apologise to the parties for any inconvenience and stress that may have caused, and I thank them for their patience. I also note for the parties’ information, that although all of their submissions have been carefully considered, they are not all referred to in this decision for reasons of brevity. Tenant claims Should [The landlord/s] have had an agent?
- A pivotal issue for [The tenant/s] is that [The landlord/s] did not employ an agent to manage her, and other’s tenancies at the premise. This she submits resulted in a significant amount of work for her and has detrimentally affected her enjoyment of this tenancy. In particular she: i. Cleaned and removed rubbish when she first moved in and during the tenancy. ii. Took on the responsibility for securing replacement flatmates when others vacated. iii. Cleaning flatmates’ rooms when they vacated. iv. Receipting and dealing with rent and bond payments for other flatmates. v. Monitored others’ electricity usage. vi. Cleared the drains. vii. Water blasted the property. viii. Gardened. ix. Replaced rotten decking boards. x. Cared for the animals being the flat cat, the chickens and ducks. xi. Cleared out the storage shed. xii. Took general responsibility for the property in [The landlord/s] absence.
- She says that at times she specifically asked [The landlord/s] for an agent, but he refused. She also pointed out many times his lawful responsibility to have an agent in his absence. In January 2024, he finally agreed to appoint an agent however matters deteriorated from there and he returned to New Zealand.
- [The tenant/s] says that at first she was happy to undertake some tasks, however as she took on more responsibility the assumption just arose that she was the sole contact point and the others took less involvement in the home. She says there were some periods when [The landlord/s] was travelling and out of contact which were frustrating and meant she had to take sole responsibility for the property over these periods.
- When asked why she did not just cease these roles when they became too much, [The tenant/s] said she wished to have input into who was going to be living at the property to keep the space safe for them all. Her written evidence says: I offered to be the one responsible for finding other tenants so I would be able to vet prospective tenants to make sure they would be likely to follow [the property] Guidelines. 1 1 Page 11, paragraph 21, Statements dated 16 August 2024
- [The tenant/s] feels she was forced to undertake this role to an extent and references an email sent by [The landlord/s] on 5 March 2023 saying: due to you habit to bring me bad news and always ruthlessly put legal pressure over me, as a compensation, once winter coming, you might help me do “oversee and monitoring job.” She says she read this to say that she had to oversee the trades who came to do maintenance work.
- [The landlord/s] says this is always how he has run things at his house; everyone pitches in. He runs the home in a collective way and not for a (substantial) profit. He says that he always had the final say on prospective tenants but that the others got a vote given they were to live with them. He agrees that [The tenant/s] did recruit many tenants and he appreciated her contribution which she offered. He paid her $100 each for several recruited tenants and $50 for managing their exit.
- However, he says he never asked her to do so and has compensated her for some of her work. He says he did not hire a property manager as it is his home and he wished to run it as he previously had. He says he was told by a property manager that for them to run it while he was away, all occupants would need to vacate the property and they would recruit tenants themselves. He did not want to make any of his current tenants homeless so did not do this.
- [The landlord/s] further gave evidence that all occupants contacted him at times, and many made complaints about [The tenant/s] he had to manage. Other occupants often undertook tasks and were compensated by a rent reduction. In summary he says that whilst he appreciates [The tenant/s]’ contribution, she took it on voluntarily. The law & discussion
- As applicant, the burden of proof is on [The tenant/s]. This means that she must establish her claims to the civil standard of proof, being the balance of probabilities, or what is more likely than not.
- A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) RTA. [The landlord/s] was outside of the country for the majority of [The tenant/s] tenancy and did not appoint an agent, he has therefore breached section 16A of the RTA.
- Breaching section 16A of the RTA is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A RTA.
- 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.
- I am satisfied that [The landlord/s] committed this unlawful act intentionally. Although he did not view the arrangement as a residential tenancy, he also did nothing to clarify that position when [The tenant/s]raised it on multiple occasions. [The landlord/s] has at least one other rental property and as such is or should be aware of the law. I am therefore satisfied that [The landlord/s] knew, or ought to have known, that a property manager was required given his residence overseas.
- In considering [The tenant/s] claim for exemplary damages I note: a. I do not consider [The landlord/s] failure malicious, more negligent as to his responsibilities. b. It was however serious negligence given the number of times [The tenant/s] raised it. c. The impact on [The tenant/s] has been considerable as discussed elsewhere. d. It is in the public interest that landlords comply with this obligation for obvious reasons that have been born out in this scenario. Tenancies are a business and as such require close management.
- Having considered all of the above, I find that an award of $500 exemplary damages justified in this instance.
- Turning now to [The tenant/s] claim for compensation for this breach. The evidence establishes that some tasks [The landlord/s] asked of [The tenant/s], others she took on independently. Some, such as finding new flatmates, she asked to do. 2 [The tenant/s] could have asked [The landlord/s] to take over many of the tasks but did not. She did however raise the difficulty with him and did ask for compensation for her work, some of which he consented to.
- Considering the situation holistically and having carefully read the extensive submissions and evidence, I am satisfied that [The tenant/s] was put to many tasks that she would not have been if a property manager had been engaged. Many however could have been avoided had she asked [The landlord/s] to undertake them.
- It is a well-accepted principle when awarding compensation that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement/RTA. Liability exists for foreseeable losses flowing from the breach. It was foreseeable and 2 Email 4 April 2023 borne out multiple times here that the tenants would have to undertake some of [The landlord/s] responsibilities in his absence.
- I find that an award of $500 compensation for [The tenant/s] efforts over and above those already compensated 3 for is reasonable 4 in the circumstances.
Has the landlord breached his maintenance requirements?
- [The tenant/s] claims that the landlord has breached his obligations under section 45 of the RTA to provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
- [The tenant/s] says that when she first moved in there was considerable cleaning and rubbish removal to undertake and the property was in a state of disrepair. As discussed above [The tenant/s] also undertook maintenance obligations for [The landlord/s].
- [The tenant/s] witness [Witness 1] also gave evidence that the property was unclean and had considerable rubbish when [The tenant/s] moved in. There were discarded belongings all over the property, likely left by previous multiple tenants. He says she is proactive which is why she undertook all the work which was considerable.
- On 14 January [The tenant/s] issued [The landlord/s] with a 14-day notice to remedy stating that he was failing to fulfil his maintenance responsibilities although did not specify which ones exactly.
- [The landlord/s] says he did not ask her to do much and that other tenants were undertaking some of the roles, some of which he financially compensated them for by rent reduction. He says he just wanted harmony and that was the collective way he tried to run the tenancy. For example, with the chickens, they were the collective responsibility although he paid for their feed (by way of rent reduction) and all the tenants enjoyed their eggs. The cat also was not his but a flat cat. He paid for the cat food but as the other tenants enjoyed him, they collectively cared for him.
- He says that [The tenant/s] had different standards to those that had been in place. She was the first woman to live in the property after five men had been residing there for some time. He agrees that the property wasn’t particularly clean but says she wanted it at a much higher standard than was reasonable. 3 Including in this order 4 Section 85 RTA
- When her complaints got too much in January 2024, he asked her to do nothing further firstly saying he would get an agent and then choosing to return home. The law and discussion
- It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- The photos indicate that the home was not provided to [The tenant/s] in a reasonably clean and tidy way. [The landlord/s] said he would move the rubbish when he was home but did not offer an immediate solution. [The tenant/s] did not ask him to attend to the cleaning, she just did it herself.
- Part of the reason this situation has arisen is because of [The tenant/s] caring and nurturing nature. She has independently taken on roles because she could see they needed doing, a clear example is the chickens. To her mind they were being neglected so she spent considerable time looking after them. This is a credit to [The tenant/s] however has resulted in her feeling taken advantage of.
- The drain work was clearly a landlord responsibility, and I am satisfied that [The landlord/s] was aware [The tenant/s] was clearing them at times despite this being his responsibility.
- The evidence indicates that [The tenant/s] took on many responsibilities of her own volition, often saying she had her own reasons for doing so and enjoying it. 5 It was not until the work increased that she found it too much and said as much to [The landlord/s] asking for compensation of some kind. Compensation has been discussed but not all amounts were agreed on. At times [The landlord/s] advised [The tenant/s] that she did not have to take on all the responsibilities she has. 6
- The evidence of correspondence between the parties certainly, at least at the beginning, establishes a communal environment which was no doubt part of [the property]’s attraction to many. It is clear however that [The tenant/s] is the most proactive of all the tenants and was the one who got things done. 5 Email 7 October re. chickens 6 An example is email 3 September
- Having carefully considered the evidence, and bearing in mind the onus of proof, I do not find that the property was provided in a state of disrepair, although it was not clean and tidy which is a breach of section 45(1)(a) of the RTA. [The tenant/s] did not ask for rectification of this breach at the time however. I also find that maintenance jobs did arise during the tenancy which [The landlord/s] dealt with by paying tenants to do them. This is a reasonable arrangement provided both parties agree on the terms.
- [The tenant/s] has been compensated for the action she had to take in lieu of an agent and I consider this covers the same issues as this claim. Accordingly, I make no further money orders for this breach. Has the landlord breached the tenant’s quiet enjoyment?
- [The tenant/s] alleges that [The landlord/s] has breached her quiet enjoyment of the property and gives the following examples: a. When the other flatmates were breaching [the property] Guidelines by having parties or playing loud music, she asked [The landlord/s] to address this directly with them but feels he did not as nothing changed. The numbers of unknown people at the property jeopardised her feelings of safety and security, not to mention her ability to work. b. In January she found [The landlord/s] standing next to her car when she had not known he would be returning to New Zealand. This gave her a fright. She says he then followed her around the property asking questions. c. Shortly afterwards when she was hosting a lunch, [The landlord/s] came in and sat at the table. She asked him to leave but he would not. When she threatened him with the Police he went and sat just outside on the deck. d. On occasions after that [The landlord/s] would sit on the deck for long periods outside the female area of the home which made her uncomfortable. e. He sent emails to all the tenants which she says was in an effort to start a ‘smear’ campaign against her. f. When she tried to discuss one of the other occupants with him, he refused to engage.
- [The tenant/s] issued a 14-day notice to cease harassment on 22 January 2024 but says it continued after that.
- The collective result of all these encounters meant that [The tenant/s] was so uncomfortable that she left the property, feeling bullied out. This has meant that she moved out in a hurry and has had to move between short term rentals for a lengthy period as she has not been able to find a permanent home. [The tenant/s] has established in evidence the serious health impacts that the events in January and February had on her.
- [The landlord/s] says he tried to mediate between [The tenant/s] and the other tenants who were all complaining against the other. However, he says he was torn between them as they had generational differences and different habits. He considered some of [The tenant/s] requests, i.e. not to bring over friends, were unreasonable.
- [The landlord/s] evidence is that he got a shock when he received the first 14- day notice as he had never been served with one before. He felt he was losing his home, so he thought he needed to return and resolve it.
- When he was home, he was under the impression he could use the shared spaces such as the kitchen and deck given he was residing in the shed and that had been the previous arrangement. He had taken legal advice who advised him not to talk to any of the occupants.
- [The landlord/s] says this experience was incredibly stressful for him and accepts he made mistakes in how he dealt with it. He had never had legal proceedings like this, was unsure what to do and was very concerned for his home. The law and discussion
- 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. 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.
- 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, as with this case, where the landlord’s 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.
- 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.
- Section 48 of the RTA sets out a landlord’s rights and responsibilities regarding their access to the property.
- [The landlord/s] gave no notice that he was returning to the property. Although he did not reside in the main house, he was required to provide the tenants notice of his return. It was no doubt a shock to [The tenant/s]and the others when he just appeared. I am satisfied that this was a breach of their quiet enjoyment.
- [The landlord/s] subsequent use of the communal areas of the property without prior notice or consultation, given few if any of them had lived with him previously, was also a breach of their quiet enjoyment.
- What is also clear is that [The tenant/s] and the other tenants disagreed on various issues and lived differently. I accept [The landlord/s] evidence that when [The tenant/s] complained he tried to talk to the others about it. The Tribunal cannot determine issues between tenants and only against a landlord if they fail to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. 7 It has not been established in evidence that [The landlord/s] failed in this respect.
- There is evidence of [The landlord/s] saying things about [The tenant/s] in his communications with other occupants. I accept however he was not doing this maliciously but was floundering in a difficult situation.
- In summary I find that [The landlord/s] has breached [The tenant/s] right to quiet enjoyment to the extent of harassment by his actions of returning to the home and then using the facilities. I accept he got incorrect legal advice however he took many of the actions, such as returning home, before he did so. Accordingly, I find he breached section 38 of the RTA intentionally as he either was aware of the law or should have clarified it before his return. [The tenant/s] had referred to the RTA many times in her communications with him; he was remiss not to check his rights before moving back in.
- The impact on [The tenant/s] has been considerable and his actions clearly encouraged her to move out and have detrimentally affected her health.
- It is clearly in the public interest that landlords respect their tenants’ rights to quiet enjoyment of a property which is a fundamental aspect of having a home. 7 Section 45(1)(e)RTA
- I find that awards of $1,000 exemplary damages and $300 compensation justified in the circumstances. The bond
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. [The landlord/s] did not do this as he considered he had a flatmate agreement with [The tenant/s] and as such he was not legally required to make such a lodgement.
- I am satisfied that although [The landlord/s] did breach section 19 of the RTA, he did not do so intentionally. He genuinely considered their relationship one of flatmates at that time and discussions regarding the RTA had not yet been had. [The tenant/s] bond has been applied to rent arrears and this failure has not prejudiced her. Accordingly, I do not consider monetary awards just. The tenancy agreement
- [The landlord/s] did not provide [The tenant/s] with a tenancy agreement in accordance with section 13 of the RTA. This is because he provided, and she signed, a flatmate agreement. Also given his choice in agreement, no information regarding the Healthy Homes Standards (HHS) were included.
- I also do not consider this an intentional breach of the RTA as discussed above. [The landlord/s] thought he was contracting for another arrangement than the one he got, at the time he did it. It was later that [The tenant/s] pointed out to him that this was actually a tenancy and as such the RTA applied. Accordingly, I do not consider any monetary awards just.
Was the property misrepresented?
- [The tenant/s] says that her greatest concern with the tenancy was that it was misrepresented and when she realised that, it was too late and she was stuck. She says [the property] had been presented to her as a drug, alcohol and party free zone but that is not what transpired due to the other occupants’ habits. She feels deceived.
- As a result of the environment she found herself in she says she needed to take extra steps to keep the property safe, such as setting up the [the property] Guidelines and overseeing the intake of flatmates.
- [The landlord/s] says all he told her was that he did not like alcohol, drugs and partying and did not want them to occur at [the property]. He was however not aware of what the others were doing in his absence. He agrees he knew this was important to her which is why he agreed to the [the property] Guidelines when she established them.
- [The tenant/s] agrees there was an “underground culture” as some of the occupants were taking advantage of [The landlord/s] who is very laid back.
- For there to be an actionable misrepresentation the following elements must be present: a. A false representation b. The misrepresentation must have been made by one party to the other. c. The party who made the misrepresentation must have intended for the other party to rely on it. d. The misrepresentation must induce the party to enter the contract.
- I find it more likely than not that the property was represented to [The tenant/s] in the way she says it was and that she relied on those representations. However, I am not satisfied that [The landlord/s] intentionally misled her. I accept his evidence that he thought he had created a particular environment at [the property] but in fact what was occurring when he was not around was quite different. He was rarely at the property, so it ended up being run by the occupants.
- Accordingly, this claim is dismissed.
Was the termination notice retaliatory?
- [The tenant/s] evidence is that she issued a 14-day notice on 9 January and within a week [The landlord/s] had returned to the country. [The landlord/s] specific email response to the notice was: “You have raised a legal action over me. I will not accept such threat. It is sad to have this result. On 26 February, [The landlord/s], via his lawyer, gave [The tenant/s] notice to terminate her tenancy.
- [The landlord/s], as discussed above, says he felt he was losing control of his house and was worried about what [The tenant/s] was doing. He was afraid of the legal steps she was taking and so issued the notice. Later by email on 27 March [The landlord/s] apologised for serving the termination notice saying it was unfair and he had not had the intention to “kick anyone out until you kicked me out from kitchen”.
- 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 any Act, or by any complaint against the landlord. See section 54(1) RTA.
- The onus is initially on [The tenant/s] to satisfy the Tribunal that it is more likely than not that the landlord was so motivated, in whole or in part. The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Accordingly, the link must be direct. Once she has established a link, the onus then shifts to the landlord to prove that the notice was not retaliatory.
- Before that however the first requirement of s54 of the RTA must be met, which is that the termination notice must be a valid notice that complies with section 51 RTA. The lawyer’s letter did not give the reasons for the termination and relied on the flatmate agreement which was not legitimate. Accordingly, the termination notice itself did not comply with section 51 of the RTA.
- Therefore, the notice was unlawful pursuant to section 60AA of the RTA and as such cannot be declared retaliatory. Pursuant to section 60AA of the RTA 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.
- [The landlord/s] via his lawyer attempted to terminate the tenancy unlawfully by using an incorrect form of notice. It does appear however that [The landlord/s] was given incorrect legal advice on this matter. Accordingly, I do not consider he was aware that what he was doing was unlawful.
- Therefore, whilst I find that the termination notice was unlawful, I do not make any corresponding monetary order as I am satisfied that [The landlord/s] was attempting to comply with the law by this point however was given the wrong advice. Landlord claims
- [The landlord/s] claims rent arrears. The amount claimed in arrears ($3,646,32) is agreed, however the deductions are not.
- Deductions for the light bulbs, ‘[redacted]’, chicken food, [another tenant’s] bond, cleaning a room, cleaning the drainage 10 times, jug replacement, 2 flatmate recruitments, totalling $2,049.82 are agreed to.
- The following deductions are disputed: a. $153 for the trademe ad. b. $274 for dealing with the ducks. c. $85.40 for the net curtain.
- I discuss each as follows. Trademe
- [The tenant/s]claims $153 reimbursement for advertising for tenants for [The landlord/s]on Trademe. [The landlord/s] agrees to pay her this if the cost is substantiated.
- [The tenant/s] has provided evidence for four listings for $9.90 for “flatmates wanted” which relate to [the property] and another for $16.80. The other amounts are unclassified. Accordingly, I consider $56.40 established in evidence. Ducks
- When [The landlord/s] left New Zealand there were some ducks on the property. While he was away, they multiplied significantly. When [The tenant/s] advised [The landlord/s] of her concerns about their numbers, he said they could eat them or give them away but did not offer to take any steps himself.
- [The tenant/s] advertised for homes for the ducks and collected and transported them herself. She says she felt she had to do so given the number breached Council regulations. She claims $274 from [The landlord/s] for her time in doing so.
- [The landlord/s] does not consent to this cost as he did not authorise it and did not know what [The tenant/s] was doing. He says she had no obligation to take the steps she did, and he should not have to pay her for it.
- [The tenant/s] took these steps out of kindness, but she was not obliged to, nor did she ask [The landlord/s] to arrange them himself. However, she had raised her concerns on multiple occasions and [The landlord/s] responses were inadequate. She was attempting to mitigate the issue by rehoming them and in protecting their welfare.
- I find that given [The landlord/s] did not address this issue when it was raised, compensation in the form of $200 for having to do so herself is reasonable. This was a landlord responsibility and should have been attended to by [The landlord/s]. Curtain
- [The tenant/s] says she had to purchase a net curtain to protect her privacy given the large numbers of people another occupant was having staying in the gardens of the property. She had raised the concern with [The landlord/s], but things had not changed (this is discussed above).
- Section 49(1)(d) of the RTA requires landlords to compensate tenants for costs they incur in maintaining the property after a request to the landlord to do so fails. There is not such a specific provision when a landlord fails to comply with section 45(1)(e) of the RTA – protecting one tenant from another’s breach of their peace.
- However, section 49 of the RTA requires a party to mitigate their losses. I consider [The tenant/s] was doing so here. She had asked [The landlord/s] to address the matter, nothing had changed, this was a step she could take to mitigate the impact on her. The curtain has been left behind for [The landlord/s] use. Accordingly, I approve reimbursement of this cost.
- This has been an unfortunate set of circumstances. I accept that both parties were, for the majority of their relationship, attempting to do their best in a difficult and confusing situation. I trust that this decision will at least give them both some closure for this challenging period. Filing fee & Suppression
- As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. For the same reasons I approve both parties’ applications for suppression orders.