Published tribunal order
Tenancy Tribunal case 4832057 — Rent arrears
Decided 12 Apr 2024 · Published 12 Apr 2024 · Application 4832057
- Rent arrears
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenant and the Landlord’s name and identifying details.
- The landlord must provide the tenant with a current rent summary by 19 April 2024 that includes Orders 3 to 6 below.
- The landlord must alter the weekly rent payable on the rent summary to $1,010.00 per week as per the Tribunal’s 6 September 2023 Order and amend the rent arrears total accordingly.
- The landlord must reimburse the tenant for the monthly gas bottle rental on her production of the monthly gas bill from Matagas (her provider) and credit her rent ledger for the $701.04 cents owed to her for the monthly rental fees she has paid for it from 23/02/2019 to 10/04/2024.
- The landlord must reimburse the tenant for the 2 days rent it overcharged her from 23 to 25 February 2019 ($300.00) when it was agreed between the parties to the tenancy agreement the tenancy commenced on 25 May 2019 and not 23 May 2019. In addition, the rental period on the rent summary must be changed to run from Monday to Sunday with rent being payable on a Monday for the week in advance.
- The landlord’s rent summary must be recalculated to take into consideration the award of $2,090.44 from the Tribunal’s 6 September 2023 Order made under application 4556819 and the award of $1,090.44 from the Tribunal’s 14 February 2024 Order made under applications 4776433, 4556819 and 4758746. Where any appeal is successful any award made in the landlord’s favour would be entered into the rent summary at the time. No stay of the 6 4837982, 4837963, 48320572 September 2023 or 14 February 2024 Orders has been granted by the District Court.
- The landlord must get a locksmith the change the master code for the lock on the rental premise by 19 April 202. The landlord must be the only one to know and be able to change the master code and this code will only be used for the purposes of conducting property inspections or any other lawful entry purposes.
- The tenant may only alter the ancillary codes she creates to allow her and her guests/flatmates/family to enter the premises. The tenant must not alter the master code.
- The landlord must give the tenant a one-hour time slot for all property inspections, until the Police Fraud proceedings and the Privacy Commission proceedings against the two property management companies have been concluded.
- The landlord must wait for the New Zealand Police to accompany it during property inspections and must arrive for the inspection no later than 15 minutes after the time provided to the tenant in writing (no less than 48 hours in advance of the inspection). This is to keep both parties and the tenant’s business records safe from any potential alleged privacy breaches and/or further allegations of fraud being made against the property managers and/or their companies.
- All current maintenance issues/concerns must be raised by the tenant in writing to the current property manager by 19 April 2024 so she can address these. All future property issues or concerns must also be raised in a timely manner to the current property manager at the time.
- The landlord’s application for termination of the tenancy and possession of the premises is dismissed as the tenant was not in at least 21 days of rent arrears as at the date of the landlord’s applications 4832057 or 4837963 nor was she in rent arrears as at the date of this hearing (10 April 2024).
- The landlord’s application for compensation for the tenant allegedly altering the locks without the landlord’s consent and failing to allow the landlord entry in circumstances where it was entitled to enter are dismissed as the landlord has failed to prove that the tenant did not have permission from the owner to change the ancillary codes nor that she changed the master code nor that it was unreasonable in all the circumstances to require a more specific time for the property inspection that allowed the tenant to arrange for a member of the New Zealand Police to accompany the property manager during the inspection until the tenants fraud and privacy breach proceedings have been concluded. 4837982, 4837963, 48320573
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears, termination of the tenancy, possession, compensation, exemplary damages and reimbursement of three filing fees for three applications that have been joined. Background
- The tenancy commenced on 23 February 2019. Initially it was a fixed term tenancy, but on 24 February 2020 it converted to a periodic tenancy.
- The tenant gave evidence that the rental premise is one of a number of properties in the street/area that are owned by the same landlord.
- Initially the property was managed by Hopeland Properties. Issues arose between this property management company and the tenant, so the owner recently engaged [Current property management Company name suppressed] to manage the property.
- Prior to [Current property management Company name suppressed] taking over the property management of the rental premises, the tenant and the prior property management company appeared before the Tribunal on 6 September 2023 (application 4556819), 12 February 2024 (applications 4556819 and 4776433) and 14 February 2024 (applications 4776433, 4556819 and 4758746).
- The weekly rental was initially $1,050.00. On the expiry of the fixed term, being 23 February 2020, the weekly rent was increased to $1,100.00. On 23 March 2023, the landlord gave notice that the weekly rent was to increase to $1,180.00 from 27 May 2023. The tenant was not happy with this rental increase and applied to the Tribunal for a market rent assessment.
- In tenant application 4556819, the Tribunal assessed the market rate for the property at $1,010.00 per week and ordered the landlord to reduce the rent to this amount from 27 May 2023, when the rent increase was effective from. This rent rebate resulted in Ms Turner having rent credit that the landlord had not taken into account in the rent summary it produced for the 10 April 2024 hearing and its rent summery shows that it has also continued to record the weekly rent owing as $1,180.00, despite the 6 September 2023 Tribunal Order. This has artificially inflated the amount of rent arrears the landlord is claiming the tenant owes it.
- In application 4556819, Ms Turner also successfully applied for reimbursement of water rates of $2,070.00. The Tribunal found she had been overcharged for water, when the tenancy agreement is clear that water is included in the weekly rental. The landlord says [tenant’s name suppressed] agreed to pay an 4837982, 4837963, 48320574 additional $20.00 per week for water, as the landlord had informed her that she was using more than the amount of water included in the fixed weekly rental price. Rent records show from 25 May 2019 to 27 May 2020 [tenant’s name suppressed] paid the $20.00 per week for water. She gave evidence at the 10 April 2024 hearing that she felt under duress to do so. This refund of $2,070.00 overpayment of water also put [tenant’s name suppressed] into further rent credit, that the landlord also does not seem to have accounted for in the ren summary produced on 10 April 2024 hearing.
- In application 4556819, the Tribunal also granted [tenant’s name suppressed] reimbursement of the $20.44 filing fee. This refund has not been paid to [tenant’s name suppressed] and has further increased her rent credit.
- On 12 February 2024, the Tribunal heard the landlord application for a rehearing of the tenant application 4556819 and the landlord application of 4776433. This application was dismissed because the landlord failed to establish grounds to support its claim. The Tribunal’s 6 September 2023 Order stood.
- On 14 February 2024, the Tribunal heard the tenant application 4758746 for work orders, compensation for loss of amenity of the garage and exemplary damages for a retaliatory 63-day notice given to the tenant on 30 October 2023 terminating the tenancy on 5 January 2024 so members of the owner’s family could move into the rental premise and use it as their principal place of residence. The Tribunal made the work orders requested, awarded $570.00 compensation for loss of amenity of the garage, $500.00 exemplary damages for a retaliatory termination notice and reimbursement of the $20.44 filing fee. The $1,090.44 awarded also added to the tenant’s rent credit, which was not fully considered in the rent records provided to the Tribunal by the landlord.
- In addition, the tenant’s rental summary shows that the landlord has not reimbursed her for the fixed rental fee for 2 gas bottles per month as the premises do not have reticulated gas and she requires the gas to het water and cook food. The landlord has refused to reimburse the tenant for this monthly fixed cost, despite her offering to send him a copy of the monthly invoices. The invoices produced in evidence prove she is being forced to pay the fixed gas charge as well as the consumption charges when she is not legally responsible for the fixed gas monthly rental fee. The overpayment of the monthly gas bottle rental has also led to a rent credit of $701.04, for the period 23/02/2019 to 10/04/2024, that has not been accounted for in the rent summary provided by the landlord at the 10 April 2024 hearing.
- When I compare the rent summary records provided by the tenant on 10 April 2024 hearing with those produced by the landlord, I also find that the landlord’s records incorrectly state that the rent was payable from Saturday 2 March 2019, when the tenant had moved in on a Monday and paid cash for the first week’s rent to Monday 4 March 2019. This has resulted in the landlord rent periods 4837982, 4837963, 48320575 running from Saturday to Friday instead of Monday to Sunday and leads to a rent credit of $300.00 being owed to the tenant for these two days. Was the rent in arrears by at least 21 days as of 15 March 2024 when the landlord made its application for termination of the tenancy?
- The landlord provided rent records and water rates assessments which it claims prove the tenant is in $4,382.86 in arrears as of 15 March 2024 when it lodged application 4837963 seeking termination of the tenancy based on the rent being at least 21 days in arrears at the date of the application and still being in arrears at the date of the hearing (10 April 2024).
- It is of note that the rent arrears have been calculated with the rent remaining at $1,180.00 per week from 27 May 2023 to current and keeping a sum on hold on the rent ledger of $6,290.00 “until the next appeal”.
- The tenant produced a copy of the landlord’s application for appeal of the 6 Tribunal’s September 2023 Order as well as the 12 and 14 February 2024 Orders. The date of the application is 28 February 2024. This means the application is out of time for appeal of the Tribunal’s 6 September 2023 and 12 February 2024 Orders. The appeal therefore can only relate to the 14 February 2024 Tribunal Order for an award to the tenant of $1,090.44. This amount does not correlate to the landlord’s “on hold sum” of $6,290.00.
- On the contrary, the tenant’s rent ledger seems to be an accurate representation of the rent, water and gas credit she is owed by the landlord as of 10 April 2024. It calculates the rent from Monday to Sunday each week. Rent is payable each Monday for the week in advance. It has also taken into consideration the two days of rent that was not owed for 2 and 3 March 2019 as the tenant moved in on a Monday not a Saturday. The start date of the tenancy was inaccurate reflected on the tenancy agreement as being Saturday 23 February 2019, but the rental payments made by the tenant support her claim that the landlord agreed to Monday 25 February 2019 as start date of the tenancy. This rent summary also accurately records the rent payable from 27 May 2023, records the fixed gas charges payable by the landlord and does not include $20.00 per week water rates that the Tribunal held are not payable by the tenant under the signed tenancy agreement.
- I am satisfied that the tenant’s rent/water/gas summary is correct and that she was in credit by $940.49 as of 10 April 2024.
- I am also satisfied that there are several fundamental errors in the landlord’s rent/water/gas summary that shows the tenant in $4,382.86 rent arrears as of 15 March 2024 and the landlord has failed to prove the tenant has been in rent arrear at any time during her tenancy. 4837982, 4837963, 48320576 Did the tenant alter the locks without the landlord’s consent and/or fail to allow the landlord to enter when it was legally entitled to do so?
- [The landlord] claims the tenant did not allow them entry to the premises on 15 March 2024 when they were entitled to enter to do a scheduled routine property inspection. Further, that the tenant changed the locks to the rental premises without consent for the purpose of preventing the landlord from lawfully entering the premise to undertake that property inspection between 2pm and 4pm.
- A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
- A landlord must also provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is also an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 46(3) and Schedule 1A Residential Tenancies Act 1986.
- The tenant gave evidence that she has brought proceedings against the two property management companies that have managed her tenancy and the property managers for breaches of her privacy and fraud. Because of these proceedings she will not agree to the current property manager entering the premises to undertake a property inspection without being supervised by the NZ Police as she has what she claims are legitimate concerns about the potential for the current property manager to commit further breaches of her or her clients’ personal information or to engage in further fraudulent activity during inspections.
- The tenant also produced emails that supported her oral evidence that the previous property manager, Simon, had agreed to the tenant adding more ancillary codes as required to the lock system and to change those ancillary codes as often as she required. This is because the lock system has facility for a master code to be set that the tenant cannot use or change. It appears from the evidence that no master code had been set up, so when the tenant changed the ancillary codes, it had the unintended consequence of locking the property manager out.
- I am satisfied that in all the circumstances that the tenant has not unlawfully changed the lock code without Simon’s written and oral consent and that the 4837982, 4837963, 48320577 landlord can regain access by having a master code set in the lock system that it can use to lawfully access the premises as required.
- I am also satisfied that the tenant has not failed to allow the landlord to enter the premises on 15 March 2024 to undertake a property inspection without the NZ Police being present. Given the pending litigation in relation to the tenant’s fraud and privacy breach claims against the property manager and her company I also find it reasonable to direct the current property manager to: a. Give the tenant a one-hour time slot for all property inspections, until the Police Fraud proceedings and the Privacy Commission proceedings against the two property management companies have been concluded or a new property manager is appointed that has no association with these proceedings; b. Wait for the New Zealand Police to accompany her during property inspections; c. Arrive for the inspection no later than 15 minutes after the time provided to the tenant in writing in a lawful notice of inspection. This is to keep both parties and the tenant’s business records safe from any potential alleged privacy breaches and/or further allegations of fraud being made against the property managers and/or their companies.
- The landlord’s claims for exemplary damages for breaches of ss 48 and 46 of the RTA are dismissed for the landlord’s failure to provide sufficient evidence to prove its claims. In addition, the tenant provided evidence that disproved these claims.
- I have made orders in relation to some agreed rules for future property inspections conducted by the current property manager to ensure both parties have clarity on each other’s expectation when these inspections will be carried out in circumstances where the relationship of trust has gone for both parties and fraud/privacy breach litigation is on foot.
- I have also made order in relation to the creation of a master code to allow electronic monitoring of who accesses the premises at any time and allows the property managers to always have the access key to allow them to enter the premises when they are entitled to do so. Reimbursement of the filing fees
- Because [the landlord] has not been successful in any of its three applications, I dismiss its claims for reimbursement of the three filing fees.