What was the outcome of Tenancy Tribunal case 4808421?

The tribunal order states: Richard Blue As Trustees Of Blueprint Investment Trust must pay Lee Hodgins

How much money was awarded in case 4808421?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4808421?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4808421?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10055960-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4808421?

The tribunal order states: Richard Blue As Trustees Of Blueprint Investment Trust must pay Lee Hodgins

How much money was awarded in case 4808421?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4808421?

The primary dispute was Exemplary damages. Related themes: Boarding House.

Where can I read the official tribunal order for case 4808421?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10055960-Tenancy_Tribunal_Order.pdf.

56D Doon Street, Mosgiel, Mosgiel 9024 Tenancy Tribunal Case 4808421 — Exemplary damages

Order

Richard Blue As Trustees Of Blueprint Investment Trust must pay Lee Hodgins $2,100.00 immediately, being exemplary damages for giving an unlawful termination notice.
All other claims are dismissed.

Reasons

The Tribunal must consider an applications filed by both the tenant and landlord. The tenancy has ended, but both parties have filed claims against one another following the end of the tenancy.
Both parties appeared at the hearing.

BACKGROUND

The tenancy agreement records the landlord as Zachary Blue and the tenant as Lee Hodgins. The tenancy was a fixed term tenancy commencing on 17 July 2022, until 15 October 2022. At the end of that fixed term period, the tenancy rolled into a periodic tenancy. The tenant was permitted to have a cat and dog under the agreement.
The tenancy agreement also records in relation to the refrigerator and washing machine “will not be maintained – can be taken away”.
I also note a text message prior to the tenancy commencing, where the landlord clarified:

Does Lee need the fridge and washing machine?

... OK. As other tenant will take if not needed. To note. I do not maintain these – so if they break. They are the tenants responsibility to be fixed / tipped. (if fixed – he owns).

The tenant states that he first learnt the premises were for sale, at the time of an inspection on 27 December 2022, and he later found that the premises had been on the market for sale since February 2022 – that is prior to the tenancy starting.
An inspection occurred on 11 May 2023, at which time a notice was given to increase the rent with an offer to vary the tenancy agreement by entering into another 12 month fixed term tenancy. The tenant did not sign it, because he wanted to discuss the matter first with his support person.
Then later in the evening of 11 May 2023, the landlord sent a message to the tenant which the tenant took offence at. The communications are as follows: Landlord -Will look into that tap in the kitchen tomorrow. And please email the form back to me as soon as possible signed if you are looking to renew the lease for another year at $390.00 pwas stated in the letter given to you today. Will need another inspection in a month or so to see if the smell as reduced. As it can only be causing damage to the unit. ... Tenant - Are u for fucking real

Landlord -Excuse me?

Tenant - Your texts ?

Landlord - Yes. I have read them. That is not an appropriate answer to my concerns on the smell within the unit from the dog Have had dogs in the past within my own house. It has never gotten to the point of the smell within that unit. It is a concern for me. And your candid nature towards it is worrying. Tenant -If you have a problem with me come see me face to face well sort it out. Landlord - This is not appropriate behaviour. At all. And with that. Will be terminating your lease as from the final date of your yearly lease. It is highly inappropriate for these text and this aggressive [copies of text messages provided ends at this point]

On 12 May 2023 the landlord sent a termination notice to the tenancy, stating that the tenancy was terminated as of 11 August 2023 because: The premises are to be put on the market by the owner within 90 days after the termination date (as above) for the purpose of sale or other disposition
And: Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is being done. The work must begin, or material steps towards it are to be taken, within 90 days after the termination date (as above).
On 10 December 2023 the tenant filed his application with the Tribunal.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

TENANTS CLAIMS

There are two claims for the tenant. Firstly that the termination notice was a retaliatory termination notice, and secondly that the termination notice was unlawful. Retaliatory termination notice
The tenants position is that the termination notice given by the landlord was a retaliatory termination notice.
As I explained at the hearing, this claim must be dismissed for legal reasons, that is because the claim is out of time. The retaliatory notice provisions are found in section 54 of the RTA, and are as follows: 54 Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or pro‐ posed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any com‐ plaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
As can be seen from that provision, the law requires that any application for a retaliatory notice, must be made within 28 working days, which is not the case here. The notice was issued in May, but the tenants application not filed until 10 December 2023, it is accordingly out of time.
I record for completeness that I cannot order exemplary damages for retaliatory notice, because that would require it to be found as an unlawful act under subsection 3, which in turn requires a finding that the notice was retaliatory under subsection 2, but that cannot be found unless subsection 1 was also met.
I must therefore dismiss the application for a retaliatory notice finding. Unlawful termination notice
The tenant has also claimed that the termination notice was unlawful, because in effect the grounds under which were issued were false.
I begin by noting that the landlord can lawfully terminate the tenancy with 90 days notice, when the premises are to be put on the market, or extensive renovation work to be undertaken as I will discuss below. However that only relates to a periodic tenancy. Accordingly if the landlord gives notice on either of those grounds, then the notice would be valid.

Is this a periodic tenancy?

At the hearing the tenant submitted that at the time the termination notice was given, the tenancy was in a further fixed term tenancy period. At the hearing we worked through what had happened, and I confirmed that the evidence did not support that there was a further fixed term tenancy.
My impression of the evidence is that the landlord offered to renew the tenancy for a further one year period, which I interpret to be a further one year fixed term period. That is reflected in the landlords text message from 11 May. Again what the landlord said by text is: ...please email the form back to me as soon as possible signed if you are looking to renew the lease for another year at $390.00 pwas stated in the letter given to you today.
The form I understand was a rent increase form, and in effect I understand what the landlord was saying to the tenant, was that if you would like to renew the lease for another year, that is enter another one year fixed term tenancy, to sign and return the form which was the rent increase form.
Tenancy agreements are contracts, and the general contract law applies to them. At its very minimum a contract is formed when someone makes an offer, and the other party accepts that offer.
In this case I concluded that on 11 May 2023 the landlord made an offer to rent the premises for another fixed term.
However I find there is no evidence that the tenant accepted the offer. It is well settled law, that when a person makes an offer, they can specify how acceptance is to be confirmed. In this case, the landlord specified that acceptance of the offer was to be made by signing and returning the “form”. But what then happened, was the landlord terminated the Tenancy by notice, which can be accepted as a withdrawal of the offer. Ultimately because the tenant did not accept the offer in the manner specified, and because the offer was withdrawn, the end result must be that there was no fixed term tenancy when the tenancy termination notice was given. The tenancy was at that time and remained a periodic tenancy. Premises to be put on the market
Section 51 of the RTA sets out the grounds upon which a tenancy can be terminated by notice, and in particular section 51(2)(a) includes when: (a) the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition;
I find the landlord has not complied with that requirement in this case, because the premises were already on the market at the start of the tenancy. Taking a plain reading of the above subsection, is that notice can be given if the premises “are to be put on the market with 90 days after the termination date”. In this case the landlord was not intending to put the premises on the market following the termination – the premises were already on the market.
Accordingly the landlord did not have grounds to terminate the tenancy under that provision. Undertaking work to the premises
The other ground notice can be given (as relevant here) is section 51(2)(f) which confirms that notice can be given when: (f) extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date; or
On the basis of the evidence available, I am not persuaded that the landlord could have terminated the tenancy on this ground either.
For the reasons I have set out above, I consider the evidence is that on 11 May 2023, the landlord was prepared to enter into another fixed term tenancy with the tenant, for one year. But then what happened, is that the parties had a significant falling out, around the text message conversation regarding pet odours. Very quickly on the heels of that text message, the landlord issue the termination notice on 12 May. The landlord has not identified anything that has changed materially between 11 and 12 May, which would explain why one day the landlord was happy to continue the tenancy for one year, but the next determined that the tenancy needed to end for renovation purposes.
Rather, I consider them much more likely situation is that the landlord determined that the Tenancy was to end, as he was upset in relation to the text message received from the tenant. In fact, I think the landlord says that as much, when he responded to the text messages from the tenant by stating: Landlord - This is not appropriate behaviour. At all. And with that. Will be terminating your lease as from the final date of your yearly lease. It is highly inappropriate for these text and this aggressive
Section 60AA of the RTA is relevant. That provision relates to unlawful termination notices and holds: 60AA Landlord acting to terminate tenancy without grounds 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.
In my assessment of the evidence, the landlord is likely to have been aware that the termination notice was not given on valid grounds, and I find therefore, that section 60AA has been met, meaning the notice was unlawful and an unlawful act.
The Tribunal must consider whether exemplary damages can be ordered. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct. 54 Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA. 55 Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. 56 The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 60AA is $6,500.00. 57 Taking the section 109 factors into consideration, in my assessment it is likely that the landlord intended to issue the termination notice, knowing that the grounds were not valid. I would accept that is probably not the situation as it relates to the notice regarding the sale, but I consider the landlord was aware that the grounds in relation to renovation works, would not be accurate. The effect of the unlawful act was significant for the tenant, because he has lost his home, in circumstances where there was no lawful ability to end his tenancy as it did. There are very strong interests for tenants particularly that their tenancies are not ended without lawful authority, and there is also a significant interest for the public generally. I consider it would be just to make an order of exemplary damages here. 58 Again the maximum level of exemplary damages for the breach is $6,500.00. In this case I consider that an order at 1/3 rd of the maximum would be indicated. I can see no factors that would argue for a higher or lower order. I therefore order the landlord to pay the tenant $2,100.00.

LANDLORDS CLAIMS

Missing chattels 59 The landlord has claimed compensation for missing chattels in particular the fridge and washing machine. Section 40 of the RTA sets out the tenants responsibilities, and that includes that at the end of the tenancy the tenant must “leave in or at the premises all other chattels provided by the landlord for use of the tenant”. 60 In this case on the evidence available, I consider the tenant should have returned those items at the end of the tenancy. That said, I accept that where was some uncertainly around what would happen with those items. The tenant says he did need to repair them which given the agreement with the landlord would mean they are his. But I have only the tenants statement

he did get them repaired (I have not received any invoice supporting that etc). 61 But I decline to order compensation for them. My impression is that they were items that were not particularly important to the landlord given the text message prior to the tenancy start. Further I consider the items are likely to have been quite old at the end of the tenancy, and based on the Inland Revenue Depreciation Guides (IR265) would be passed their useful life. Door damage 62 The final claim from the landlord was around door damage. This claim was withdrawn by the landlord at the hearing.

NAME SUPPRESSION

63 The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the landlord has applied for name suppression, but given he has not been wholly or substantially successful, name suppression is declined.

Tenancy Tribunal case 4808421 — Exemplary damages at 56D Doon Street, Mosgiel, Mosgiel 9024

At a glance

Tenancy Tribunal case 4808421 — Exemplary damages at 56D Doon Street, Mosgiel, Mosgiel 9024

At a glance

Claims & awards

Order

Reasons

BACKGROUND

Does Lee need the fridge and washing machine?

Landlord -Excuse me?

Tenant - Your texts ?

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

Is this a periodic tenancy?

LANDLORDS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

Does Lee need the fridge and washing machine?

Landlord -Excuse me?

Tenant - Your texts ?

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

Is this a periodic tenancy?

LANDLORDS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions