Published tribunal order
Tenancy Tribunal case 4854645 — Rent arrears at Unit/Flat 612, 421 Queen Street, Auckland Central,
Decided 2 Aug 2024 · Published 2 Aug 2024 · Application 4854645
Tenant favoured
- Rent arrears
Order
- The application for breach of quiet enjoyment is dismissed.
- Ankit Arora must pay Ravi Kiran Shelly $92.00 immediately as shown in the table below.
Reasons
- The landlord, Mr Arora, attended the hearing remotely via teleconference because he was in Australia.
- The tenant, Mr Shelly, attended the hearing in person.
- Mr Shelly signed a fixed-term tenancy. The tenancy was between 19 August 2023 and 19 August 2024. Mr Arora’s claim against Mr Shelly
- Mr Arora alleges that Mr Shelly breached the fixed-term tenancy by vacating the premises on 31 December 2023. Mr Arora is seeking the remaining rent from 1 January 2024 to 19 August 2024 (the end of the fixed-term tenancy), as Mr Shelly abandoned the tenancy on 31 December 2023. The amount being claimed is $8,580. Mr Shelly’s claim against Mr Arora
- On 6 April 2024, Mr Shelly filed a cross-application against Mr Arora. Mr Shelly claims: a. Compensation for bed bug infestation from 28 August 2023 to 28 November 2023 (around three months). b. Breach of quiet enjoyment by the landlord (entering the apartment without sufficient notice). c. Mr Arora did not lodge the bond ($780) with the tenancy services within 23 working days after receiving it on 26 August 2023.
- I note a previous Tribunal Order (No. 4724984, 4765642) dated 6 March 2024 concerning bed bug infestation and breach of quiet enjoyment issues involving a different tenant, Ms Misaki, at the same tenancy address.
- Mr Arora requires each tenant to sign a tenancy agreement. Since each tenant signs a tenancy agreement, the claim must be considered based on the agreement signed between the parties. In this case, Mr. Arora and Shelly signed the tenancy agreement.
- I will now address each of the claims in turn.
Is Mr Shelly liable for the rent between 1 January and 19 August 2024?
- Mr Arora is claiming $8,580 from Mr Shelly as the remaining rent for the fixed- term tenancy that was supposed to end on 19 August 2024.
- Mr Arora states that the tenancy commenced on 19 August 2023 and was for a one-year fixed term until 19 August 2024. However, Mr Shelly moved out on 31 December 2023, before the end of the fixed term.
- Mr Arora's position is that since it was a fixed-term tenancy agreement, Mr Shelly is liable to pay the remaining rent, which amounts to $8,580, from 1 January 2024 until the end of the fixed term on 19 August 2024.
- According to Mr Arora, Mr Shelly moved out of the premises not because of bed bug infestation. Mr Arora submitted that the main reasons Mr Shelly moved out of the property were: a. Mr. Shelly purchased a car around 10 December 2023, and since there was no dedicated parking at the apartment, he struggled to find parking and likely incurred additional parking costs. Mr Arora states this was the primary reason. b. On 14 December and 15 December, other tenants complained that Mr. Shelly was smoking inside the apartment, which was not allowed. c. On 24 December 2023, another tenant complained that Mr. Shelly was not keeping the apartment clean, leaving dishes and food residue around. d. Mr Arora contends that Mr Shelly used the bed bug issue, which Mr Arora claims was resolved after the 28 November 2023 treatment, as an excuse to move out early when the real reasons were the parking issue due to his new car and the complaints about his behaviour from other tenants.
- In Mr. Arora's view, the bed bug problem was not the true reason behind Mr. Shelly's early abandonment of the fixed-term tenancy.
- According to Mr. Arora, he took the following actions to address the bed bug concerns raised by Mr. Shelly and the other tenants: a. He arranged for professional fumigation/pest control treatment on four separate occasions: i. 29 August 2023 (1st treatment) ii. 13 September 2023 (2nd treatment) iii. 11 October 2023 (3rd treatment) iv. 28 November 2023 (4th treatment) b. After the 11 th of October 2023 treatment, Mr Arora's wife visited the apartment and asked all the tenants, including Mr Shelly, if there were any more bed bug issues. Everyone, including Mr. Shelly, confirmed that the bed bug problem was resolved. c. When Mr Shelly reported bed bugs again on 1st November 2023, Mr Arora asked for photo/video evidence of bites or live bed bugs to share with the fumigation company. Mr. Shelly did not provide any evidence. d. On 15 November 2024, when Mr Shelly reported bed bugs again, Mr Arora asked for his availability to schedule another treatment, which was done on 28 November 2024. a. After the 28 th November 2023 treatment, Mr Arora received no further complaints about bed bugs from any tenants, including Mr Shelly.
- Mr. Arora took prompt action multiple times by arranging professional pest control treatments whenever bed bug concerns were raised, at a cost of around $600. He states the issue was resolved after the 28 November 2023 treatment based on no further complaints.
- While Mr Arora believed Mr Shelly vacated the premises for different reasons, I did not share the same with him because, in my view, he terminated the tenancy by consent on 11 January 2024. My reasons are: a. On 11 January 2024, Mr. Arora sent a text message to Mr. Shelly saying "Hey Ravi, this has brought to my attention that you are visiting after you abandoned the place. No disrespect mate, but please stop visiting my apartment with immediate effect. Thanks." (emphasis mine) b. I interpret the text message as Mr Arora effectively terminating the tenancy agreement by telling Mr Shelly with "immediate effect" to stop visiting/re- entering the apartment. c. Mr. Shelly's use of his money was his personal decision. If he chose to pay rent to another landlord while his fixed-term tenancy with Mr. Arora was still in effect, that was his prerogative. Just because Mr. Shelly vacated the premises on 31 December 2023, did not mean that Mr. Arora had agreed to terminate the fixed-term tenancy, until Mr. Arora explicitly stated in a text message: '...please stop visiting my apartment with immediate effect.”
- Accordingly, Mr Shelly is not liable for the remaining rent from 1 January 2024 to 19 August 2024 (the end of the fixed-term tenancy), as Mr Arora terminated the tenancy, intentionally or unintentionally, on 11 January 2024.
- The amount owing to Mr Arora is $408 (between 1 January and 11 January 2024). Mr Shelly’s claim against Mr Arora Compensation for bed bug infestation
- Mr Arora did not dispute a bed bug infestation in the apartment. I acknowledged that Mr. Arora did try to address the bed bug issue by arranging professional fumigation/pest control treatments on four separate occasions.
- The previous Tenancy Tribunal order (No. 4724984, 4765642) for the same apartment involving another tenant (Ms Misaki), where $300 compensation was awarded for a similar 3-month period of bed bug issues from 25 August 2023 to 22 November 2023.
- Mr Arora mentioned that Mr Shelly first reported the bed bug issue on 5 September 2023. However, I did not consider it would significantly affect the compensation since there was only a week between 25 August 25 2023 and 5 September 2023.
- For parity and fairness with the previous order, I consider awarding Mr Shelly the same compensation amount of $300 for the bed bug issue covering the approximate 3-month period from late August 2023 to 28 November 2023 appropriate.
- Accordingly, Mr. Shelly satisfied me on the balance of probabilities that there was a bed bug infestation, and I awarded $300 in compensation. Breach of quiet enjoyment (entering the apartment without sufficient notice)
- Mr Shelly claims Mr Arora has harassed him.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- 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 main evidence Mr Shelly relied on to claim that Mr Arora breached his quiet enjoyment was a text message from Mr Arora's partner stating: "Hi all, I will be coming today around 3:00 PM to see how it's going. I don't want to disturb anyone so can you all advise who all will be there around that time please?"
- Mr Shelly argued that this did not provide proper 48-hour notice before entry, as required by tenancy laws. He stated he did not see this message within the 4- hour notice period.
- Additionally, Mr. Shelly mentioned that on one occasion, Mr. Arora's partner and someone else came to the apartment early in the morning around 8 a.m., banged on his and the other tenants' doors without any prior notice, and shouted about how they could enter without proper notice.
- However, I did not find this evidence sufficient to establish a breach of quiet enjoyment. I noted that the text message was addressed to "all" tenants, not just Mr Shelly, and it did ask for advisement on who would be present, suggesting an attempt to avoid disturbance.
- Regarding the alleged morning incident, I only have Mr Shelly’s evidence without specific information. For instance, there is no date, time, and/or evidence of complaint to Mr Arora.
- Accordingly, I am not satisfied on the balance of probabilities that Mr Arora breached Mr Shelly’s quiet enjoyment. The claim under this heading is dismissed. Mr Arora did not lodge the bond ($780) as required.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- Concerning not lodging Mr Shelly's bond of $780 with the bond centre within the required 23 working days after receiving it on 26 August 2023, Mr Arora provided the following explanation: a. Mr. Arora stated that when Mr. Shelly moved in on 19 August 2023, there was a discussion that he needed to pay the rent and bond before moving in and getting the keys. However, Mr. Shelly did not pay the full bond amount until over a week later on 26 and 27 August 2023. b. Mr. Arora said he was initially unaware that he had to lodge the bond within 23 working days of receiving it. c. He expressed surprise that Mr Shelly was using the late bond lodging against him, stating that while he (Mr Arora) was flexible in allowing Mr Shelly to delay rent payments in the first two months, Mr Shelly was not extending the same flexibility to him regarding the bond lodging. d. Mr Arora mentioned that in the previous Tribunal order (No. 4724984, 4765642) involving another tenant (Mr Shelly's acquaintance, Ms Misaki), the issue of late bond lodging was not raised until November 2023 when Ms Misaki filed a complaint with the Tenancy Tribunal. e. Mr Arora stated he had already been penalised for the late bond lodging in Ms Misaki’s case, so it would not be fair for him to pay exemplary damage again for the same issue with Mr Shelly.
- I acknowledge Mr Arora’s concern about being penalised twice for the same issue. I would have agreed with Mr Arora’s submissions had not because Mr Arora signed a tenancy agreement with each of his tenants. In the present case, he signed a fixed-term tenancy agreement, which was required under section 19(1) RTA to file the bond received within 23 working days after receiving it.
- In my view, the only common denominator between Mr Shelly and Ms Misaki is that Mr Arora’s tenants live in the same apartment. However, each tenant has his or her tenancy agreement, and Mr Arora is required to lodge the bond after receiving it within 23 working days. One tenancy, one bond. There is no other way around it.
- Accordingly, I find Mr Arora has committed an unlawful act.
- 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) Residential Tenancies Act 1986.
- The previous Tribunal Order (No. 4724984, 4765642) dated 6 March 2024 imposed a $200 exemplary damage for not lodging the bond for another tenant, Ms Misaki, at the same address. In fairness to Mr Arora I impose the same amount of exemplary damage. Filing fee
- Each party has partially succeeded in their claims. The costs should lie where they fall. Name suppression
- Both parties have partially succeeded in their respective applications. However, I do not consider the parties have substantially succeeded in proceedings under section 95A(1) of the Residential Tenancies Act 1986.
- Accordingly, each party’s name suppression application is dismissed.