What was Tenancy Tribunal case 4849328 about?

The tribunal order states: Sheryl Edwards must pay [The tenant/s] $500.00 immediately.

How much money was awarded in case 4849328?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4849328?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4849328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10235183-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4849328 about?

The tribunal order states: Sheryl Edwards must pay [The tenant/s] $500.00 immediately.

How much money was awarded in case 4849328?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4849328?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4849328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10235183-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4849328 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4849328 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Claims and awards in Tenancy Tribunal application 4849328 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Bond not lodged	$500.00	Bond not lodged
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Order

Sheryl Edwards must pay [The tenant/s] $500.00 immediately.
The Tribunal declares that the notice of termination of the tenancy dated 10 March 2024 is invalid.
The Tribunal declares that the tenancy renewal clause (clause 21) is valid and the tenancy is renewed for a further 12 months.
The Tribunal declares that the landlord has given permission to the tenant to sublet part of the premises on Air bnb.
All other applications are dismissed.

Reasons

Both parties attended this video hearing on 16 April 2024.
The tenanted premises are at [Tenancy address suppressed] (“the premises”). The premises consist of two levels. The upper level includes three bedrooms, bathrooms and living area. The downstairs is a self- contained studio.
The tenancy commenced on 12 April 2023 and was a fixed term tenancy to end on 12 April 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, 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. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails, photos and txt messages. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. The parties expressed strong feelings of disappointment and stress with how things evolved during the course of the tenancy, there having been goodwill and communication between the parties during much of the term of the tenancy. Tenant claims Bond not lodged.
The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s.19(1) Residential Tenancies Act 1986 (“RTA”). This applies whether the bond is paid in part or whole.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (see s.19(2) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see section 109(3) RTA).
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation, but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non- lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013- 092-2373).
The tenant says that the bond of $1,260.00 was paid to the landlord prior to the commencement of the tenancy.
The landlord accepts having received the bond, but says that they forgot to lodge the bond until it was brought to their attention by these proceedings. The bond was lodged on 5 April 2024.
The landlord has committed an unlawful act for which exemplary damages may 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.
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.
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.
Taking the s.109 RTA factors into consideration, I conclude:
I consider that the landlord’s activity was intentional for the reasons set out previously in this order.
The effect of the unlawful act has been to reduce the security of the tenant’s funds.
The interest of this tenant and the public interest is for funds to be held in accordance with the requirements of the RTA.
I am not aware of any previous breaches by this landlord relating to other tenancies. As a “rule of thumb”, damages awards of one third of the maximum are generally considered appropriate in the absence of any mitigating or aggravating factors. There are no aggravating or mitigating factors. The landlord is ordered to pay exemplary damages of $500.00 to the tenant, being half of the maximum award available. Termination of tenancy
The tenant claims that the termination of the tenancy is invalid and that accordingly the landlord has acted to terminate the tenancy without grounds ( s.60AA RTA).
The landlord prepared the tenancy agreement for these premises. This is where the landlord’s problems arise.
Section 51 RTA sets out the requirements for terminating a tenancy.
Section 51(3) RTA requires the notice to be in writing, specify the date by which the tenant is to vacate the premises and where notice is given by the landlord, set out the reasons for the termination (see also s.51(4) RTA).
The landlord referred to earlier discussions with the tenant regarding the sale of the premises. That discussion was not in writing, nor did it provide a termination date and as such does not amount to a notice of termination.
The written notice of termination from the landlord is dated 10 March 2024, but was sent to the tenant by email dated 12 March 2024.
The notice records that “ As the lease agreement comes to an end on 12 April 2024, at 12.00 hrs, we are providing you with notice to end the lease agreement on 12 April 2024. The lease will not extend past 12/4/2024.the fixed term tenancy ends on 12 April 2024.
By email dated 20 March 2024, the tenant informed the landlord that the termination notice did not comply with the RTA. The tenant also confirmed their wish to take up the renewal offer contained in the tenancy agreement.
The landlord replied confirming their view that the tenancy would end on 12 April 2024 and that the landlord’s would be moving back into the premises (see landlord email dated 22 March 2024).
The landlord obtained legal advice on their rights to terminate a fixed term tenancy. A copy of the letter from their lawyers dated 26 March 2024 was provided in evidence. With respect, the advice received was incorrect.
Subsequent correspondence from the lawyers to the tenants dated 3 April 2024, confirming that as a result of receiving the termination notice, they would need to exit the premises on 12 April 2024, was also incorrect in law.
The law can be summarised as follows; • The fixed term tenancy was to end on 12 April 2024. If neither party took any steps to extend or end the tenancy prior to that date, then the tenancy would continue as a periodic tenancy. • In the event that a landlord wished to end the tenancy on 12 April 2024, then they could do so, by giving the tenant notice on the same grounds as if it were a periodic tenancy (see s.51 RTA). • In the case of a landlord wishing to return to live in the premises themselves they would need to give the tenant 63 days’ notice. That would have required the landlord in this matter to have given notice to the tenant by no later than 9 February 2024.
The interpretation above is based on s.60A(2) RTA. Section 60A(2) RTA provides; (2) However, the tenancy does not continue as a periodic tenancy if,- (a) before the expiry of the tenancy, the parties renew or extend the existing tenancy agreement; or (b)before the expiry, the parties agree not to continue with the tenancy. (c)at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminate the tenancy on or before the expiry date or that would do so if the tenancy were already periodic.
The landlord, having not given the correct amount of notice, the notice is invalid. Where a notice is invalid, the landlord needs to issue a fresh notice. The District Court held in Charan v Barfoot and Thompson DC Manukau CIV 2010-092-2100,14 June 2010 that where notice is “short” the Tribunal cannot fix that by simply extending the invalid notice.
For the reasons given above, I find that the termination notice dated 10 March 2024 is invalid.
The tenant says that the landlord has acted to terminate the tenancy without grounds. Section 60AA RTA provides that; 60AA Landlord acting to terminate tenancy without grounds. A landlord commits an unlawful act if they give or purport to give a notice 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.
The essential term in the section as it relates to this application is “knowing that they are not entitled.”
I am satisfied that the landlord did think that they were entitled to give the notice. That is reinforced by the legal advice received. The application is dismissed. Retaliatory Notice
Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised 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 complaint by the tenant against the landlord relating to the tenancy.
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 (see s 54(2), (3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
I have already found in this order that the notice did not comply with s.51 RTA.
The application was made within 28 working days of the notice.
Has the tenant proven that the landlord in terminating the tenancy was motivated wholly or in part by the tenant exercising a right under the tenancy agreement or any enactment?
Whilst the events leading up to the termination have occurred close in time, the evidence indicates that the reason or motivation for the termination was not anything done by the tenant, but rather the financial circumstances that the landlord finds themselves in and their need to sell the premises. I consider that the landlord had a legitimate reason for issuing the notice of termination and the application is dismissed. Tenancy Renewal clause.
Clause 21 of the tenancy agreement provides as follows; “Renewal of Lease
Upon giving written notice no later than 21 days before the expiration of this lease, the tenant may renew this Lease for an additional term. All terms of the renewed lease will be the same except for this renewal clause.”
By email dated 20 March 2024, the tenant also confirmed their wish to take up the renewal offer contained in the tenancy agreement.
The expiration date of the lease was 12 April 2024. The notice was made no later than 21 days before the expiration of the lease.
The tenant evidence was that this ability to extend the term of the lease was important to them when entering the tenancy.
The landlord evidence was that they never thought that the extension would be entered into.
The clause is simple and direct. The tenant has given written notice of their wish to renew the tenancy no later than 21 days before the expiration. The clause is valid and the tenancy is extended for a fixed term of 12 months from the date of expiration. Air bnb
The tenant said that they had let out the downstairs studio through Airbnb.
They said that the idea of letting out the studio was brought to their attention by the landlord. The landlord had provided them with information about letting out premises to local students.
The landlord confirmed that they had raised the idea of letting to students, but the landlord was adamant that they were not aware that the studio had been let by the tenants, until issues arose with having photos taken of the premises to prepare it for sale.
A tenant may sublet premises, but only with the prior written consent of the landlord ( see s.43B RTA).
In my view, the txt message from the landlord to the tenant which appears to be dated 24 February 2024 is important. The landlord refers to the difficulty that her real estate agent was having and states “ ....if this becomes a problem we will withdraw permission to use the downstairs as a B and B. Happy to chat if you like.”
That txt message makes it clear that the landlord knew that the tenant was using the downstairs studio for Air bnb. The landlord had given permission for this to occur. Had permission not been granted, why would the landlord refer to withdrawing that permission.
I find that the landlord has given permission to sublet the premises. The landlord would still be entitled to withdraw that permission, but could only do so if they did so on reasonable grounds or did not attach any unreasonable conditions. The evidence did not suggest that the tenant has suffered any financial loss as they have left the listing with Air bnb, but have not had any recent bookings. No compensation is ordered.
Both parties applied for name suppression. The tenant has been substantially successful and suppression of the tenant name and details is ordered.
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
In the present case, the landlord was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlords names and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression by the landlord ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlords and the public interest, the public interest outweighs the landlord’s interests.
Accordingly, no order is made for suppression of the landlord’s name and identifying details.

Tenancy Tribunal case 4849328 — Exemplary damages

At a glance

Tenancy Tribunal case 4849328 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions