What was the outcome of Tenancy Tribunal case 4807397?

The tribunal order states: PADAS Property Management Limited must pay Thomas Elliott English

How much money was awarded in case 4807397?

Cleaning: $333.99 awarded to tenant; Compensation: $50.00 awarded to tenant; Compensation: $320.00 awarded to tenant; Compensation: $960.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807397?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4807397?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10457742-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4807397?

The tribunal order states: PADAS Property Management Limited must pay Thomas Elliott English

How much money was awarded in case 4807397?

Cleaning: $333.99 awarded to tenant; Compensation: $50.00 awarded to tenant; Compensation: $320.00 awarded to tenant; Compensation: $960.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807397?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4807397?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10457742-Tenancy_Tribunal_Order.pdf.

Unit/Flat 7, 25 Thane Road, Roseneath, Wellington 6011 Tenancy Tribunal Case 4807397 — Cleanliness

Claims and awards in Tenancy Tribunal application 4807397 — net $2,044.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for overpaid bond	$360.00	Compensation for overpaid bond
Compensation for unfinished work	$50.00	Compensation for unfinished work
Compensation for construction	$320.00	Compensation for construction
Compensation for steam clean	$333.99	Compensation for steam clean
Compensation breach s38	$960.00	Compensation breach s38
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,044.43
Total payable by Landlord to Tenant	$2,044.43

Claims and awards in Tenancy Tribunal application 4807397 — net $2,044.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for overpaid bond	$360.00	Compensation for overpaid bond
Compensation for unfinished work	$50.00	Compensation for unfinished work
Compensation for construction	$320.00	Compensation for construction
Compensation for steam clean	$333.99	Compensation for steam clean
Compensation breach s38	$960.00	Compensation breach s38
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,044.43
Total payable by Landlord to Tenant	$2,044.43

Order

PADAS Property Management Limited must pay Thomas Elliott English $2,044.43 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Two hearings have been held in this matter. Ms Savell and Ms Walsh represent the landlord property management company whom I will refer to as PADAS in this decision.
This tenancy occurred between 1 June 2023 and 22 January 2024. The property is a townhouse in a group of seven in a well-regarded suburb of Wellington.
Mr English seeks relief for a number of alleged breaches of the Residential Tenancies Act 1986 (RTA) by the landlord during this relatively short tenancy. Specifically, he makes the following claims for compensation: $392 for requiring key money. $640 for a failure to access the back garden externally. $5,036.00 for breach of quiet enjoyment/lack of amenity. $5,850.00 for having to vacate without consent for 5 days.
I address each claim separately. Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. All evidence and submissions provided by the parties have been considered in this light to form this decision, even if it has not been expressly mentioned in the decision.
I apologise for the delay in the issuing of this decision and thank the parties for their patience.

Was key money demanded?

Mr English was provided with the tenancy agreement on 19 May 2023 and told to pay the bond and two weeks rent into the landlord’s bank account. He paid two weeks rent to the landlord and the bond directly to the Bond Centre at Tenancy Services.
On 1 June when he was supposed to move in, he was told he could not do so until he paid the bond. He advised that he had paid that directly to the Bond Centre however this was not accepted by Ms Walsh, and he was asked to pay it again. In order to access the property as intended, he therefore had to make a further payment of $3,920 to PADAS.
Mr English was not refunded his second payment by PADAS but by the Bond Centre who paid it to him when they received PADAS’s bond lodgement on 26 June. Mr English submits that this amount is equivalent to key money and as such he should be compensated for having to make this extra unnecessary payment.
Section 17 of the RTA states that no person may require the payment of key money in respect of the grant of any tenancy agreement. Key money is defined in section 2 as any sum of money “demanded by way of fine, premium, foregift, reimbursement of expenses, administration charges, or otherwise as consideration for the grant, continuance, extension, variation, or renewal of a tenancy agreement, or for consent to the surrender or disposition of the tenant’s interest under a tenancy agreement or to a subletting by the tenant; but does not include any sum payable or paid by way of rent or bond”.
Ms Walsh submits that they did not demand key money; she says they just wanted Mr English to pay the bond to their company directly as is their usual process for all tenants. If it does not go through their system she says, their system does not register that a bond has been paid.
Mr English was asked to pay a bond by email. The wording said: “...the bond...are to be paid...These are to be paid by internet banking or automatic payment...before the commencement date. Details on the payment are on the front page of the tenancy agreement.” On the front page of the tenancy agreement was the PADAS bank account.
Attached to that email was a bond lodgement form that was completed by the landlord. Mr English says he thought that he was supposed to lodge his bond with MBIE directly given the inclusion of the bond lodgement form. I consider this interpretation of the email reasonable given the bond lodgement form was attached.
It was not picked up by PADAS until the day he moved in that the bond had not gone through their company. When it was realised, the administrator did not, for some unknown reason, accept the confirmation from the Bond Centre of the lodgement that Mr English provided them.
I find it unreasonable in light of the confirmation Mr English provided, as well as the usual email from the Bond Centre direct to PADAS when the bond was received, to demand a second bond from him. A bond is tenant money and is intended to stay with the Bond Centre, an independent organisation, until the tenancy has concluded.
Further, PADAS then took 25 days to lodge the bond rather than just refund it to Mr English. They could see the Bond Centre had a bond registered over the tenancy and yet felt it necessary to lodge further funds leaving it to the Bond Centre to refund Mr English.
Essentially, due to their systems, PADAS have required Mr English to pay two bonds. This is unlawful and I am satisfied amounts to a breach of section 17 RTA. Although the money was sought in the name of a bond, the bond had already been paid so it cannot have been the bond. The definition of ‘key money’ is broad for the purpose of disincentivising the demand of unjustified monies.
Even if I am wrong in that, section 18 states that it is unlawful to seek a bond which amounts to more than the equivalent of four weeks rent. Essentially Mr English paid eight weeks rent in bond to gain access to the house.
He seeks $360 compensation for the inconvenience. Ms Walsh argues that this amount is too high given interest rates aren’t 10%.
I find this amount reasonable. Mr English was without $3,600 for almost a month, unnecessarily. This is a considerable amount of money and an unacceptable practice. I award Mr English $360 compensation.

Was Mr English misled about the back garden?

Mr English accepted this tenancy without having viewed the property in person as he was overseas. He based his decision on written descriptions, photographs/3D tool, and conversations with Ms Walsh of PADAS.
Mr English says that he was advised that the back garden could be accessed externally (not just through the downstairs bedrooms) before he accepted the tenancy, and this was partly how he assessed how much to rent the other bedrooms out at. He has provided evidence that he was specifically advised it could be accessed past the garage, however in fact it could not as the work on the external area of the property was incomplete.
He seeks compensation for this misrepresentation in the form of a rent reduction of $20 per week for the duration of the tenancy.
PADAS submits that this claim is disingenuous as Mr English could see in the virtual tour that the area was not accessible externally and he never raised the issue with them when he arrived at the house.
Having considered the evidence, I find that Mr English was entitled to rely on the specific representation by the property manager that there was external access. 1 The area cannot be seen clearly in the virtual tour.
Accordingly, I find that the garden access was misrepresented to Mr English.
There are two ways to consider this claim, one is of an action of misrepresentation, and the other is a lack of amenity. I also note that compensation is generally only available when there has been a loss that is directly related to a breach in law or contract. 1 She specifically said: “theres an exterior path at the bottom of the driveway” email 22 May 2024
The law relating to misrepresentation is now largely codified in New Zealand, in ss.35 and 37 of the Contract and Commercial Law Act 2017, although the common law still also remains relevant. Essentially, as encapsulated in s.35 as far as damages are concerned, if a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to them by or on behalf of another party to that contract, they shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken. The representation however must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past fact, not one which relates to the future.
To summarise, for there to be an actionable (compensable) 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 am satisfied that a false representation was made, and the property manager must have intended on Mr English relying on it given he asked a specific question in the process of deciding whether to take the tenancy and she gave him a specific answer.
I do not however find that the misrepresentation induced Mr English to enter the contract as this matter related to how he assigned the rooms rather than whether he took the tenancy. There is no evidence that garden access had any bearing on his decision to accept the tenancy. Accordingly, this was not an actionable misrepresentation.
I am satisfied however that this was a lack of amenity as the garden and washing line could only be accessed from the downstairs bedrooms. This meant that the occupant in the upstairs bedroom, in this case Mr English, could only use the garden or washing line if he went through another occupant’s room.
However, Mr English, in being the only lawful tenant, chose to rent out the two bottom rooms with garden access at a rental that was commensurate with their amenity. Accordingly, he was able to benefit from the situation as he could rent out the rooms with their own private garden access.
I therefore do not find it established in evidence that Mr English has suffered any loss from the misrepresentation or lack of amenity, and as such must dismiss his claim for compensation. Compensation is designed to rectify loss; as such when there is no loss, it should not be awarded. I also note that it is not just to apply post-tenancy for compensation for a concern that was not raised with the landlord during the tenancy.

Has there been a breach of quiet enjoyment?

Mr English seeks $5,036 compensation for the breaches of his quiet enjoyment. This is comprised of the cost of the carpet cleanings ($716) and a 15% reduction of his rent over the 32 weeks of the tenancy. The specific breaches are as follows: i. The work on the property was unfinished when he moved in, in particular the dryer was not installed for a few days, and the garden was unpaved for a few weeks. ii. The ongoing construction work on the adjoining units was not completed until 22 December. iii. The driveway could not be used until 24 November. iv. The garage could not be used until late December despite being advised it would be available in September. v. Carpet fumes. vi. Being prevented from accessing the home for four nights in November. vii. PADAS requiring their consent for his flatmates and engaging in unreasonable communications with them. viii. Pressure to end the lease.
I discuss each of these issues individually but before I do it is useful if I set out the law around quiet enjoyment.
Section 38(1) of the 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 this wording 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 carry out 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.
The District Court has held in Lucas v Paterson [2005]DCR 76 that where landlords are renovating property, tenants are required to put up with a degree of noise and general nuisance without compensation, with the judge commenting “Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.” However, there are cases in contrast to Lucas v Paterson in which construction activity on or adjacent to a premises has given rise to a breach. In Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013, it was considered relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.
In summary, 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 carried out, and the length and degree of intrusion. Unfinished work
It is undisputed that when Mr English moved in the dryer had not been connected. He raised this and it was installed within a few days. Ms Walsh says this was a minor issue that they rectified as soon as advised. She says she was under the impression that all the work to ready the house was completed prior to the tenancy commencing.
Mr English contracted for a tenancy with a functioning dryer, it was not provided in that way. This is an issue that would have been readily apparent to a diligent property manager checking the property before the tenancy commenced.
Mr English also gave evidence that an area in the back lawn had not been paved and as such the workman needed to access the back garden through the bedrooms on a couple of occasions to do the work. Ms Walsh was not aware of this occurring.
I accept Mr English’s evidence on this as the landlord did not provide any evidence in contradiction. He was entitled to uninterrupted use of the home from the tenancy commencement date and was not previously made aware of this particular intrusion.
Accordingly, I am satisfied that these two unfinished items should have been rectified prior to the tenancy commencing, or at least disclosed, and as such this was a breach, albeit minor, of Mr English’s quiet enjoyment of the tenancy at the beginning. I award $50 compensation for these inconveniences. Construction work
This property is one of seven units, some of which were unfinished when the tenancy commenced. There was ongoing construction work on the other units throughout the tenancy. In particular the driveway and garage could not be used until late November 2023. Mr English says none of these issues were communicated when the agreement was being negotiated.
He says the works were very noisy most work days and some weekends. At times their water and power was switched off for a period and the works were a constant intrusion into their enjoyment of the property. He says the information provided by PADAS on the issues was scant and he did not feel supported by them.
Ms Walsh says that she was careful to ensure Mr English was aware the property was in a construction site before he signed the agreement. She said she had conversations with him about it and it could be seen to an extent in the virtual tour.
Mr English does not recall these discussions and said he was not aware of the extent of the construction until after he had signed. He says he knew there would be work on the driveway but did not think it was much more than that.
On the balance of probabilities, I find it likely that there were some conversations about it. The most persuasive evidence is that the construction is mentioned in the tenancy agreement which notes a discount of $80 per week “due to the lack of access to the driveway and garage as well as the construction site”.
I therefore find that Mr English was made aware of the construction work prior to taking on the tenancy however I do not find it proven in evidence that the extent of the work was disclosed.
The landlord submits that the impact of the work was not extensive, and they had been clear with Mr English what he was contracting for therefore it is disingenuous for him to claim compensation regarding it now. A letter has been submitted from one of the flatmates which states that he considered the construction work did not create much inconvenience.
I find that the reduction of $80 per week for lack of a garage/driveway and impact of the construction works was reasonable. This reduction however did cease when the driveway and garage became accessible although the construction work continued for a further month.
I am satisfied that there was an ongoing impact of the construction work after the resumption of the full rental. There is therefore a further month (24 November until 22 December) when the full rental was charged but the construction works were ongoing. This is in breach of the tenancy agreement which states a reduction of $80 per week for both the drive and the construction. Accordingly, I consider an award of $320 compensation being a further four weeks rent reduction of $80 per week justified. The carpet
Mr English’s main concern with the tenancy was regarding the carpet to which he says he suffered intense physiological reactions. His evidence is that when he moved in the smell from the carpet off-gassing was extreme. It was so bad he says that he developed asthmatic symptoms and his sleep was impaired. He thought at first it was mould, but it subsequently became clear that it was from the new carpet.
He purchased a dehumidifier and an air purifier and had the carpets professionally cleaned three times. At one stage it got so bad that he thought he would have to leave the property and took steps to do so (although ultimately did not). He says he had to use a special air purifying mask to sleep for many months. As a result of these smells, he says he was never able to work from home or spend much time there. He considers the home was “not inhabitable without duress”. Mr English did not consult a doctor as he did not think they could assist. However, he says that going for weeks without sleeping easily was incredibly emotionally distressing.
Mr English researched off-gassing and read that it can take up to six steam cleans to dissipate a strong smell. He was undertaking these at his own cost when he was told by PADAS that he was to stop washing the carpet.
Unfortunately, there appears to have been a miscommunication between the parties, no doubt created by them communicating by email rather than directly. Ms Savell got advice from the installers that off gassing would occur and would dissipate by steam cleaning and airing, however washing would exacerbate it. She did not share this with Mr English. Mr English was having the carpets cleaned however PADAS understood he was washing them. They therefore told him to cease the washing. I am satisfied that PADAS were entitled to come to that understanding given his emails refer to “wet vacuuming”.
Ms Savell submits that they did everything they could to address the concern but did not think it was as serious as Mr English was insinuating. She says they were first advised of the issue on 5 July after he had already purchased a dehumidifier and air purifier. She says he told them he was moving out immediately (which he did not do) and asked if his flatmate could replace him as tenant. They did approve that request and drafted a tenancy amendment to that end. However, as the amendment was not provided until four weeks after Mr English’s initial request, he had changed his mind and instead of assisting, the amendment inflamed the situation. This delay was exceptionally unfortunate.
Ms Walsh points to Mr English’s later emails that state the smell was getting better with ventilation. They visited the property to smell the carpet but could not smell anything other than a ‘new’ smell and consulted the carpet installers. Ms Walsh submits they did as much as they could for the issue including allowing him to leave the tenancy early.
Having considered all of the evidence carefully, I do not find this issue a breach of either section 38 or 45 of the RTA. The smell could be mitigated by ventilation which is ultimately what happened. Mr English was given the opportunity to vacate which he initially requested. The only thing PADAS could have done further was to pay for a steam clean as advised by the installer. 2 As they could have done this and did not, but Mr English did, I consider it reasonable that they reimburse him the cost of doing so on one occasion. 3 Requirement to vacate temporarily
On 25 October Mr English and his flatmates were told they would be temporarily required to leave the property. The email specifically said: “the driveway is set to be laid next month, possibly on Nov 9 th (weather permitting). You will need to stay elsewhere for 2 days, probably not sequentially. If you do not have anywhere else to stay please let us know.
Then on 30 October: The dates the property are to be vacant are as follows: Thursday 9 th ...Saturday 11 th ...Monday 13 th ... Wednesday 15 th ...The owners have agreed to forfeit one weeks rent if you can find your own accommodation. Please let me know if you are happy with this.
It was further advised on the 15 th of November that the property would need to be vacant on the 16 th as well. On this occasion the flatmates negotiated with the trades for limited access and so remained at home.
Mr English submits that he should not have been forced to leave and the landlord should have come to an agreement with him about the issue. He says he was given no choice, just told when they had to be out and only later offered one sub-standard alternative accommodation.
Mr English considers that the offer of accommodation was unacceptable as it was not like for like. The accommodation offered was double rooms in a hostel/temporary accommodation but was, as noted by the landlord 4 , “cheap accommodation”. The offer in the alternative was for a week’s free rent. 2 Email 9 August 3 Chemdry invoice 26 September 2023 4 Email 1 November 2023
In total Mr English and his flatmates had to find alternative accommodation for four nights and on one further night they had considerably impeded access.
As the offer of accommodation was not taken, PADAS gave Mr English one week’s rent reprieve and $241 being the payment he made to one of his flatmates for their accommodation.
Mr English argues that these payments came too late. However, the email evidence does demonstrate that PADAS offered the free week immediately and it was Mr English who chose not to take that up then. I also accept that they paid these amounts to his account as soon as he provided them with his account number.
Ms Walsh submits that they tried to reach agreement with Mr English on the alternative accommodation but could not and they were at the mercy of the trades.
PADAS in this instance relied on the Body Corporate Rules which have not been provided, and section 74 of the Unit Titles Act 2010. In fact, that section is not relevant in these circumstances as it only pertains to a situation where the land or unit is damaged or destroyed.
The tenancy agreement at clause 14 states that “The tenant must comply with all Body Corporate rules relating to the building. If the tenant has not been given the rules the tenant must request a copy.”
Section 16B of the RTA states that Body Corporate rules are to be taken as terms of the tenancy agreement however those rules must be set out in the agreement, and any amendments to them notified. Mr English says he was not provided with the rules, despite requesting them.
In this instance I do not consider it reasonable nor just of PADAS to demand compliance with the rules by Mr English given he did not even know what they said.
Mr English also says that the one week’s free rent should be for the inconvenience, and he should be also given the cost of alternative accommodation, and a per diem payment, in compensation. Specifically, $5,850 as follows:
Mr English was given advice that a landlord cannot force alternative accommodation in such circumstances but must come to agreement with the tenants. I am not sure this is legally correct. The legal basis for such a situation is that the tenant is contracting (and paying) for accommodation. If for some reason that accommodation cannot be temporarily provided, the tenant should not have to pay rent for that period and the landlord should pay compensation for any inconvenience incurred by the disruption.
The question therefore becomes whether a rent holiday of one week is sufficient compensation for finding alternative accommodation for four nights and having impeded access for one other. I consider it was. This is particularly so when the reality of the situation is considered being that he and one flatmate stayed with friends and the other flatmate stayed in a hotel which he was compensated for by the equivalent of his rent with a top up from PADAS. They therefore were not financially at a loss.
It is certainly not necessary for a landlord to pay a per diem payment given it was really only the evenings they could not access the home. It was an inconvenience but not a significant one. They were aware that this would need to happen at some stage and have not been charged for the nights they were not there and have been compensated in the form of three extra night’s rent.
The communications from PADAS on the matter could have been more respectful and kind, however I consider the matter financially dealt with by PADAS and as such dismiss the claim. Contact with the flatmates
Mr English submits that PADAS communicated with his flatmates extensively which was stressful for them and him, and disrespectful. He says their involvement exacerbated already difficult flat dynamics and was lawfully incorrect. It is not disputed that PADAS had many phone and email conversations directly with the flatmates, at times requesting things, at others giving them advice.
Mr English entered the tenancy with the intention to take on flatmates given this is a 3-bedroomed property. He is the only tenant nominated on the tenancy agreement. However, PADAS advised him that they needed to give consent to each flatmate he wanted. This requirement no doubt initiated the situation of communications confusion.
The only reference in the tenancy agreement to occupants is as follows: Clause 7: The Tenant shall not assign, sublet or part with the said premises or any part thereof, or the Landlords chattels and shall not permit a total of more than four persons to occupy the said premises without the written permission of the Landlord. Approved occupants are: Elliott English
Mr English says that PADAS told him, after the tenancy agreement had been signed, that they had to approve all flatmates he wished to have. He says this was an unconsented amendment to the agreement; PADAS says that is their process and they do it to assist tenants to get in appropriate flatmates. Ms Walsh says they do the credit and referee checks at no cost to the tenant which is of benefit to the tenant. They did not decline any of the people he put forward and so say he benefited from the situation rather than was disadvantaged.
I am satisfied that this was an unauthorised amendment to the tenancy agreement. I find that clause 7 only requires Mr English to obtain written permission of the landlord if he wishes to exceed four occupants of the property. This is not what he was doing here.
By this agreement, Mr English was entitled to choose his own flatmates and contract with them for their occupancy, provided he did not assign or sub-let the premise, i.e. provided he remained there as well. He was solely responsible to PADAS for the tenancy, and they did not have the lawful right to interfere with his arrangements in that respect.
In interpreting this clause, I have used the common law doctrine of “contra proferentem”. Also known as “interpretation against the draftsman", it is a doctrine of contractual interpretation providing that, where a promise, agreement or term is ambiguous, the preferred meaning should be the one that works against the interests of the party who provided the wording. The doctrine is often applied to situations involving standardised contracts or where the parties are of unequal bargaining power, such as here. The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as it can. Contra proferentem also places the cost of losses on the party who was in the best position to avoid the harm. This is generally the person who drafted the contract.
As discussed at the hearing PADAS did not have the lawful ability to require Mr English to allow them to vet his flatmates. I do however accept that PADAS were in fact attempting to assist Mr English in ensuring he found suitable flatmates and did save him the work in vetting them. The intention was good.
However, it was not only an unlawful action, but it also resulted in considerable confusion of the legal roles in this relationship. The flatmates subsequently considered they had some relationship with PADAS, as shown with two contacting them directly regarding issues, when they did not. The lines between the parties have been blurred from the outset when in reality the only legal relationship was between PADAS and Mr English.
I do not consider compensation appropriate because their actions did assist Mr English in the vetting and he did not complain at the time, but I do put PADAS on notice that requiring tenants to allow them to vet their flatmates is unlawful.
I do note that Mr English included the flatmates into some of his communications with PADAS as well. However, on a number of occasions 5 he clearly requested PADAS to cease their direct communications with the flatmates given he had the legal relationship with them. I note that they did not cease communications despite these clear requests, which is unacceptable.
I accept Ms Walsh’s submissions that they were influenced in their relationship with Mr English, by their communications from the flatmates who were disparaging of Mr English. In reality they would have been better placed to decline to take their calls/emails and not get involved in internal dynamics.
In August Ms Walsh offered to mediate a discussion between all the occupants. Mr English questioned the need and was told: “Phillipa has insisted on this meeting because we cannot have the situation where people are only in the property for a short time...We would expect all tenants to get along and stay together for a year”. 6
The way in which the mediation was proposed was not conciliatory and in fact inflamed the situation, moreover it was legally wrong. As discussed above, PADAS had no say in how often Mr English changed his flatmates.
It is not disputed that PADAS also contacted the flatmates asking them to pay their rent directly to PADAS. This was not an appropriate request. PADAS also advised the flatmates that their agreement with Mr English was unlawful. This was also not an appropriate comment. One of the flatmates felt stressed at the requests for rent which Ms Walsh accepts he also conveyed to them.
Ms Walsh further accepted that they did ask the flatmates to try and convince Mr English not to bring the claim to the Tribunal.
PADAS’s reference to Mr English’s “sub-tenants” in their submissions is a yet another indicator of their misunderstanding of the legal situation.
I am satisfied that PADAS dealt inappropriately with Mr English’s flatmates, and this was a breach of section 38 RTA. They repeatedly contacted them, despite being asked not to. They asked inappropriate things of them such as to pay rent directly to PADAS and to dissuade Mr English from bringing proceedings. These actions were unlawful. I discuss compensation below. Efforts to terminate
Mr English considers that Ms Walsh began a campaign to remove him from the tenancy. He gives the following examples of such behaviour: a. Providing an amendment to the tenancy to replace him as tenant. 5 Email 27 November, Email 4 December 6 Email 21 August 2023 b. Giving notice to end the tenancy at the conclusion of the fixed term for him whilst simultaneously offering the flatmates another tenancy in one of the adjoining units. This also meant that he was without flatmates for several weeks towards the end of the tenancy. c. Offering to end the tenancy earlier to suit him on the condition that he not take proceedings to the Tribunal.
Mr English says these actions were a breach of his quiet enjoyment (s38 RTA) and unlawful attempts to end the tenancy (s60AA). Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Ultimately Mr English says he felt compelled to take these proceedings to advocate for all tenants as he feels that the way he has been treated has been unacceptable.
I have found that PADAS’s communication directly with the flatmates was a breach of section 38 RTA. In terms of providing an amendment to replace him as tenant with the flatmate, I am satisfied that this was instigated by Mr English, and in fact provisionally initially consented to by him. 7 The offer did come a month after the request was made and so unsurprisingly did not come across well. Further, the way it was proposed (addressed to all occupants and made as an offer from PADAS rather than a response to a request) was not helpful.
I find the actual notice to end the tenancy 8 was legitimate as the property was subsequently sold. There was therefore no unlawful notice provided and as such the claim pursuant to section 60A is dismissed. Ultimately the tenancy did end early on Mr English’s request, and he was not precluded in his claims.
Considering PADAS’s interactions with Mr English’s flatmates and the way they dealt with him holistically, I am satisfied they have breached section 38 of the RTA. Mr English’s role with his flatmates was undermined, as was the dynamics in the home. Mr English unsurprisingly felt ganged up on and disrespected, which would have been exacerbated when his flatmates were offered to move next door and he was not.
I find it proven in evidence that there was a pattern of behaviour by PADAS directed towards Mr English that was overly disrespectful of him and his legal position. They have actively favoured the flatmates over him and essentially gone behind his back.
Mr English seeks a 15% reduction in rent for this breach.
It is a well accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have 7 His email of 8 August 2024 says “I’m happy to have this conditionally approved.” 8 Pursuant to section 51(2)(a) RTA been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement/RTA.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
On the basis of the parties’ emails, I find that the relationship really started deteriorating with PADAS’s email to all tenants providing the amendment document replacing Mr English on 8 August which was 24 weeks before the tenancy ended. Rent was $900 per week (taking into account the reduction for the construction works) and from that Mr English paid approximately $250 himself.
Having considered all of the above, I find that an award of $960 is justified. This equates to a reduction of $40 per week for the relevant weeks. Other orders
Because Mr English has substantially succeeded with the claim I have reimbursed the filing fee.
The landlord seeks suppression; Mr English does not. 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. This includes being successful in their application or in their defence to an application.
I do not consider the landlord was substantially successful in their defence and also note Ms Walsh’s indication that the company would be closing soon as she is retiring. Accordingly, I do not consider it in the public interest to make any suppression orders.

Tenancy Tribunal case 4807397 — Cleanliness at Unit/Flat 7, 25 Thane Road, Roseneath, Wellington 6011

At a glance

Tenancy Tribunal case 4807397 — Cleanliness at Unit/Flat 7, 25 Thane Road, Roseneath, Wellington 6011

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was key money demanded?

Was Mr English misled about the back garden?

Has there been a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was key money demanded?

Was Mr English misled about the back garden?

Has there been a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions