Published tribunal order
Tenancy Tribunal case 4790399 — Tenancy dispute at Unit/Flat B, 309 The Terrace, Te Aro, Wellington 6011
Decided 14 Jun 2024 · Published 14 Jun 2024 · Application 4790399
- Exemplary damages
Party names are redacted in the official published order.
Order
- Property 360 Limited must pay [The tenant/s] $440.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing.
- The tenants claim the landlord entered the premises without consent or notice between 4 December 2023 and 21 January 2024. The tenants are asking for compensation. 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. Prior consent must also be obtained for viewings. See section 48 Residential Tenancies Act 1986 (RTA).
- The parties negotiated the early end of a fixed term tenancy. The agreed last day was 21 January 2024. It is agreed evidence that from 4 December 2023 until the end of the tenancy the landlord entered the flat, held viewings, cleaned inside, cleaned up the garden, removed rubbish, and painted. She did not ask the tenants if this was ok, and she did not give notice as is required by section
- When the tenants went to the house on the last day new tenants had already moved furniture in. The tenants submitted this should not have happened while they were still paying rent.
- The landlord said she knew the tenants had all moved out. She submitted it was implied in the emails that she could have free access to show prospective tenants. She said she tidied and removed rubbish because the tenants had not left it in a good condition for the viewings. She said the painting was only touch ups on the wear and tear marks on the walls. She did give the new tenants keys, but they were not supposed to move in before the start of their tenancy on 26 January.
- I have seen a copy of the new tenancy agreement and I am persuaded the landlord did not collect double rent.
- I find the tenancy continued until 21 January 2024 and the landlord should have complied with section 48 for every entry into the flat until that date. I find a small amount of compensation is appropriate and I allow $60 a week. In deciding that amount I note that the flat was empty, the viewings were necessary because of the early release date, and there was no real detriment to the tenants. I have also been guided by the amount I would have allowed for exemplary damages had these been claimed - $500 being 1/3 of the $1,500.00 maximum. See section 48(4)(a) and Schedule 1A RTA.
- Other concerns were mentioned in the tenants’ application, but not served as claims against the landlord. For clarification I note that a landlord must appoint an agent after 21 days out of New Zealand. The tenants should have made an application for reduction to market rent during the tenancy if they were concerned. The landlord was not required to agree to an early end date for the fixed term tenancy, because of the assignment process outlined in the RTA. The landlord did not have to advertise the flat and manage booking under the assignment process, but it seems most likely to me she did this to help the tenants. Other orders
- Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
- I am using my discretion to allow suppression for the tenants because the tenants are the most successful party. There is public interest in the landlord being named because of the breach of the RTA. See section 95A RTA.