What was Tenancy Tribunal case 4843501 about?

The tribunal order states: Matthew Pemberton and Ester Pemberton must pay [The tenant/s] $2,520.44

How much money was awarded in case 4843501?

Compensation: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4843501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4843501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10584027-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4843501 about?

The tribunal order states: Matthew Pemberton and Ester Pemberton must pay [The tenant/s] $2,520.44

How much money was awarded in case 4843501?

Compensation: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4843501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4843501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10584027-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4843501 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4843501 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Order

Matthew Pemberton and Ester Pemberton must pay [The tenant/s] $2,520.44 immediately, calculated as shown in the table below: DescriptionTenant Compensation $2,500.00 Filing fee reimbursement $20.44 Total award $2,520.44 Total payable by Landlord to Tenant $2,520.44

Reasons

Both parties attended the hearing. Ms Brown and Mr Frost from Holmwood Real Estate (Harcourts) represented the landlords.
The tenants applied for compensation and exemplary damages for breach of their right to quiet enjoyment and for the landlord giving notice to end the tenancy when they were not entitled to do so.
The tenants have a one-year fixed term tenancy of the premises that commenced on 20 November 2023. Rent was agreed at $700 per week.
On 24 January 2024 the landlords gave the tenants notice that they were putting the property on the market for sale. On 1 February 2024 the tenants signed a “consent to carry out open homes” form in which they agreed to there being two open homes each week. The intention was that this would be during the four-week sale campaign and after that any offers received would be put to the landlords for consideration. The property did not sell within the four-week period and open homes continued but at a reduced rate of one day per week (each Sunday morning). In addition to the open homes there were three other viewings in relation to the sale. The property eventually sold to an investor on 12 April 2024 and the open homes ceased on that date. The purchaser took over the tenants fixed term tenancy. Did the open homes breach the tenants’ right to quiet enjoyment?
Section 48(4) of the Residential Tenancies Act 1986 (the Act) provides that the landlord may, with the prior consent of the tenant, enter the premises at any reasonable time for the purposes of showing the premises to a prospective purchaser. However, when lawfully entering the premises the landlord must ensure that the entry does not interfere with the tenant’s right of quiet enjoyment. That right is found in section 38 of the Act. Section 38(1) provides that a tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or the landlord’s agent. In addition, a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises: section 38(2) of the Act. Where the landlord is in breach of these obligations, the tenant may be entitled to compensation. Where the breach of the tenant’s right in section 38(2) is sufficiently severe that it amounts to harassment it is deemed to be an unlawful act for which exemplary damages can be awarded. 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.
While section 48(4) of the Act entitles the landlord or their agents to entry, with the tenant’s consent, to show the premises to prospective tenants I have considerable doubt whether this extends to a right to hold open homes where any member of the public (whether they are a prospective purchaser or not) can walk through the tenant’s home. However, the application here is for breach of section 38 (the right to quiet enjoyment), not section 48(4) of the Act.
In my view open homes are a significant intrusion on a tenant’s right to privacy, and their right to use and enjoy the premises. As mentioned, open homes mean that any member of the public can walk through the tenant’s home, and the tenants are unable to use it as they may wish to while the open homes are being conducted.
I therefore find that the holding of the open homes, particularly after the tenants were expressing their concerns (from as early as 6 March) about the continuation of the open homes and the impact on them, constitutes a breach of their right to quiet enjoyment.
Taking into account all of the circumstances, I consider compensation of $2,500.00 reasonable to compensate the tenants for the breach. In assessing the amount of compensation, I have taken into account that the tenants did consent to the open homes in the first four weeks of the sale campaign. However, I do not agree that they gave consent to open homes after that. I accept the tenants’ evidence that they understood, reasonably in my view, that the open home consent form they signed was only for a four-week period. I have also taken into account the length of time the open homes took place: a total of 79 days of a tenancy that had only commenced some two months before the open homes began.
I dismiss the claim for exemplary damages because I do not consider that the holding of open homes amounts to harassment as that term is defined (above). While I accept that the tenants were considerably inconvenienced by the open homes, there was no evidence to support that there was any intention by the landlords to harass them.

Did the landlords give notice in circumstances where they were not entitled to?

The tenants claim that the landlords gave notice to end the tenancy on 1 March when Mr Frost emailed them stating that the landlords had an offer on the home but the prospective purchaser wanted vacant possession. Mr Frost continued saying that the landlords are “happy to financially compensate you if you are interested in discussing” and to let him know how much compensation they consider is fair.
I do not consider that this communication constitutes a notice to end the tenancy. It is simply an invitation to discuss the possibility of the tenants vacating earlier if they wished to do so.
The claim that the landlords gave notice to end the tenancy in circumstances where they were not entitled to is therefore dismissed. Tribunal application fee
The tenants have been mostly successful in their claims and I consider this an appropriate case to award them payment of the Tribunal application fee. Suppression
The tenants applied, in their application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
The tenants have been substantially successful in their claims and the limited exceptions set out in s 95A do not apply. I therefore make an order that the tenants’ names and identifying details be suppressed.

Claims and awards in Tenancy Tribunal application 4843501 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,500.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Order

Matthew Pemberton and Ester Pemberton must pay [The tenant/s] $2,520.44 immediately, calculated as shown in the table below: DescriptionTenant Compensation $2,500.00 Filing fee reimbursement $20.44 Total award $2,520.44 Total payable by Landlord to Tenant $2,520.44

Reasons

Both parties attended the hearing. Ms Brown and Mr Frost from Holmwood Real Estate (Harcourts) represented the landlords.
The tenants applied for compensation and exemplary damages for breach of their right to quiet enjoyment and for the landlord giving notice to end the tenancy when they were not entitled to do so.
The tenants have a one-year fixed term tenancy of the premises that commenced on 20 November 2023. Rent was agreed at $700 per week.
On 24 January 2024 the landlords gave the tenants notice that they were putting the property on the market for sale. On 1 February 2024 the tenants signed a “consent to carry out open homes” form in which they agreed to there being two open homes each week. The intention was that this would be during the four-week sale campaign and after that any offers received would be put to the landlords for consideration. The property did not sell within the four-week period and open homes continued but at a reduced rate of one day per week (each Sunday morning). In addition to the open homes there were three other viewings in relation to the sale. The property eventually sold to an investor on 12 April 2024 and the open homes ceased on that date. The purchaser took over the tenants fixed term tenancy. Did the open homes breach the tenants’ right to quiet enjoyment?
Section 48(4) of the Residential Tenancies Act 1986 (the Act) provides that the landlord may, with the prior consent of the tenant, enter the premises at any reasonable time for the purposes of showing the premises to a prospective purchaser. However, when lawfully entering the premises the landlord must ensure that the entry does not interfere with the tenant’s right of quiet enjoyment. That right is found in section 38 of the Act. Section 38(1) provides that a tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or the landlord’s agent. In addition, a landlord must not cause or permit any interference with the reasonable peace, comfort and privacy of the tenant in the use of the premises: section 38(2) of the Act. Where the landlord is in breach of these obligations, the tenant may be entitled to compensation. Where the breach of the tenant’s right in section 38(2) is sufficiently severe that it amounts to harassment it is deemed to be an unlawful act for which exemplary damages can be awarded. 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.
While section 48(4) of the Act entitles the landlord or their agents to entry, with the tenant’s consent, to show the premises to prospective tenants I have considerable doubt whether this extends to a right to hold open homes where any member of the public (whether they are a prospective purchaser or not) can walk through the tenant’s home. However, the application here is for breach of section 38 (the right to quiet enjoyment), not section 48(4) of the Act.
In my view open homes are a significant intrusion on a tenant’s right to privacy, and their right to use and enjoy the premises. As mentioned, open homes mean that any member of the public can walk through the tenant’s home, and the tenants are unable to use it as they may wish to while the open homes are being conducted.
I therefore find that the holding of the open homes, particularly after the tenants were expressing their concerns (from as early as 6 March) about the continuation of the open homes and the impact on them, constitutes a breach of their right to quiet enjoyment.
Taking into account all of the circumstances, I consider compensation of $2,500.00 reasonable to compensate the tenants for the breach. In assessing the amount of compensation, I have taken into account that the tenants did consent to the open homes in the first four weeks of the sale campaign. However, I do not agree that they gave consent to open homes after that. I accept the tenants’ evidence that they understood, reasonably in my view, that the open home consent form they signed was only for a four-week period. I have also taken into account the length of time the open homes took place: a total of 79 days of a tenancy that had only commenced some two months before the open homes began.
I dismiss the claim for exemplary damages because I do not consider that the holding of open homes amounts to harassment as that term is defined (above). While I accept that the tenants were considerably inconvenienced by the open homes, there was no evidence to support that there was any intention by the landlords to harass them.

Did the landlords give notice in circumstances where they were not entitled to?

The tenants claim that the landlords gave notice to end the tenancy on 1 March when Mr Frost emailed them stating that the landlords had an offer on the home but the prospective purchaser wanted vacant possession. Mr Frost continued saying that the landlords are “happy to financially compensate you if you are interested in discussing” and to let him know how much compensation they consider is fair.
I do not consider that this communication constitutes a notice to end the tenancy. It is simply an invitation to discuss the possibility of the tenants vacating earlier if they wished to do so.
The claim that the landlords gave notice to end the tenancy in circumstances where they were not entitled to is therefore dismissed. Tribunal application fee
The tenants have been mostly successful in their claims and I consider this an appropriate case to award them payment of the Tribunal application fee. Suppression
The tenants applied, in their application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
The tenants have been substantially successful in their claims and the limited exceptions set out in s 95A do not apply. I therefore make an order that the tenants’ names and identifying details be suppressed.

Tenancy Tribunal case 4843501 — Tenancy dispute

At a glance

Tenancy Tribunal case 4843501 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlords give notice in circumstances where they were not entitled to?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlords give notice in circumstances where they were not entitled to?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions