Published tribunal order
Tenancy Tribunal case 4829103 — Rent arrears
Decided 19 Apr 2024 · Published 19 Apr 2024 · Application 4829103
- Rent arrears
Party names are redacted in the official published order.
Order
- The parties’ names and identifying details including the tenancy address must not be published.
- The tenancy of [the tenant] at 132 Haverstock Road, Sandringham, Auckland 1025, Top Floor Ensuite Room is terminated, and possession is granted to [the landlord], at the end of 17 May 2024.
- The parties’ claims for termination, rent arrears, and interference with reasonable peace are allowed and a monetary allocation is made as set out in the table below.
Reasons
- Both parties attended the hearing.
- The parties have crossclaimed against each other in respect to this boarding house tenancy.
- The tenant claims the landlord failed to lodge the bond, unlawfully entered the premises, and interfered with his reasonable peace, comfort, and privacy, and issued him with an unlawful notice. He seeks compensation and exemplary damages.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
What are the rent arrears?
- The tenant owes the landlord $1,707.14 in rent arrears.
- The tenant says he has been paying the arrears at an amount agreed by the landlord. That has helped reduce the arrears which were previously much more.
- The arrears being more than 21 days when the application was filed, termination must be ordered. I will return to that issue later.
Did the landlord fail to lodge the bond?
- The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Residential Tenancies Act 1986 (RTA).
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See RTA s19(2), and Schedule 1A.
- The landlord took over the tenancy from the previous landlord. It appears the previous landlord may have failed to lodge the bond as required. However, since this landlord never received the bond, no duty ever applied to him in respect to the bond.
- This claim is dismissed.
Did the landlord unlawfully enter the premises?
- The tenant complains about the landlord’s agent entering the common area of the boarding house without notice. A landlord must not enter the tenant’s room during the tenancy except with the tenant’s consent, in an emergency, for providing services in the room, or after giving the required notice. See RTA, s 66R.
- On the other hand, the landlord of a boarding house may enter the boarding house at any time. See RTA, s 66Q.
- The landlord’s agent was permitted to enter the common area. Therefore, there was no breach in this regard. Did the landlord interfere with the tenant’s reasonable peace?
- The tenant complains that the landlord’s agent went into the boarding house’s fridges and interfered with his food on more than one occasion, including on 24 February 2024.
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See RTA, s 38(2).
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The landlord says his agent only went into the fridge to check for expired items and with the consent of the other tenants. The tenant says he explicitly refused the agent permission to go into either fridge at the premises.
- The agent’s actions were an interference with the tenant’s reasonable peace, but do not amount to harassment.
- Nominal damages are appropriate. I will return to the amount to be ordered below. Was the landlord’s notice retaliatory?
- On 28 February 2024, the landlord gave the tenant a 48-hour termination notice for threatening or endangering other tenants.
- The tenant submits the landlord gave him notice because he challenged the landlord’s agent’s authority to go through the fridge and was asking the landlord to replace the boarding house’s microwave.
- The landlord says he gave the tenant notice because the tenant pushed and threatened another tenant over a dispute involving the tenant’s microwave that all of the tenants had been using. The tenant denies there was any threat or assault. He says he only ever said that, if the other tenant took photographs, he would take him to court. Legal principles
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. 1
- 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: s 54(1) of the RTA.
- To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
- The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
- The tenant in this case submits the relevant “things” were the tenant exercising his right to ask the landlord to replace the microwave and to challenge the agent’s going through his fridge items.
- A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 2 1 RTA, s 54(2), (3) and Schedule 1A. 2 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.” Discussion
- The landlord’s notice coincides with the tenant’s email stating: Few days ago I asked people to no longer use it [the microwave] as I am no longer comfortable with anyone using it. However they've acted immorally and disrespectfully towards me, insulted and called me names, lying for my own microwave. Today, one wouldn't let me take it away and refused to respect that but being rude instead. Please because of that, are you able to just replace the microwave for the property I've taken mine away from the house and I'm more comfortable with that way and no longer comfortable with the microwave being there.
- The landlord says on the same day as the email, two of the tenants reported that the tenant had pushed one of them. The other two tenants made a formal complaint to Police. However, the Police never investigated the matter.
- The landlord did not ask the tenant for his version of events.
- The landlord’s notice is a few days after the fridge disagreement incident, and the same day as the microwave incident, and the tenant wanting the landlord to replace the microwave.
- I do not find it probable that the landlord was perturbed by being asked to replace the microwave or by the tenant challenging the agent about going into the fridge. The microwave would probably only cost a modest amount. The fridge incident was minor.
- It is far more likely the landlord was motivated to end the tenancy because he accepted the other tenant’s account and the tenant remained in rent arrears. It is not probable the other matters were a motivating factor in the notice being given. Conclusion
- I do not find it proven on the balance of probabilities that the landlord’s notice was retaliatory.
- This claim is dismissed. Outcome
- Rent was at least 21 days in arrears on the date the application was filed. The tenancy is terminated under RTA, s 55(1)(a).
- The rent arrears are $1,707.14. The bond of $1,580.00 can be applied to that, leaving a balance of $127.14.
- Returning to the nominal damages to be ordered for the interference with reasonable peace, I order $127.14 be paid. This is for pragmatic reasons and because that is an appropriate amount to order for the de minimis interference. Non-publication
- The parties apply not non-publication.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- Both parties have succeeded in the proceedings. I do not consider that publication is in the public interest of is justified because of the parties’ conduct or any other circumstances of the case.
- Non-publication of both parties’ identifying particulars is ordered.