What was Tenancy Tribunal case 4857501 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4857501?

Compensation: Loss of amenity of par…: $350.00 awarded to tenant; Compensation: Stress and inconvenien…: $585.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4857501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4857501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12131678-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4857501 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4857501?

Compensation: Loss of amenity of par…: $350.00 awarded to tenant; Compensation: Stress and inconvenien…: $585.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4857501?

The dispute type was not classified.

Where can I read the official tribunal order for case 4857501?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12131678-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4857501 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4857501 — net $962.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity of part of the yard for 7 months	$350.00	Loss of amenity of part of the yard for 7 months
Compensation: Stress and inconvenience of viewings	$585.00	Stress and inconvenience of viewings
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$962.00
Total payable by Landlord to Tenant	$962.00

Both parties attended the hearing. [Tenants name suppressed] and the Tribunal were supported by a Hungarian interpreter.

The tenants applied for compensation and exemplary damages and reimbursement of the filing fee.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. 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.

This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

In summary, 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. If any claim is not established to the balance of probability, it must be dismissed.

The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. General legal principles in relation to the award of compensation or exemplary damages

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.

Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA. Background

The tenancy commenced on 13 March 2023 and was fixed to 10 March 2024.

The tenancy was managed by a property management company. The tenants say they had communication issues with the property manager and the female tenant felt the property manager did not keep her informed of her rights, did not answer questions she had about the property and did not address minor repair issues as they arose. The female tenant says this was not due to English being her second language, that she understood the property manager, but the property manager did not do her job.

The tenants had just moved to New Zealand in 2023 and understood the landlord was meant to advise them of their rights and obligations.

On 5 January 2024, the landlord served the tenants with a section 51 termination notice, because the owner wished to sell the property. The 90-day period expired on 4 April 2024. This confused the tenants as they had taken this fixed term tenancy on the understanding they would be offered a further fixed term period of at least one more year. The female tenant stated that she was not prepared for the challenges and costs of having to move her partner, herself and her young children so soon.

The tenants moved out on 24 March 2024 without giving the landlord the statutorily required 28 days’ notice and the Tribunal ordered them to pay the landlord rent in lieu of this notice.

Part of the tenants’ application was to have their notice period reduced. There has been a previous Tribunal order about this tenancy dated 11 April 2024 – [2024] NZTT 4828498. I reminded the female tenant that she cannot re-litigate the matters determined by the Tribunal in that order, including the decision to award rent arears for the period that the tenants should have given the landlord notice. TENANT’S CLAIMS

Did the landlord breach the terms and conditions of the tenancy agreement?

The tenants claim the landlord has breached his obligations under the terms and conditions of the tenancy agreement in that they were promised the use of the entire back yard and three to four months into her tenancy the property owner fenced off the backyard leading to approximately fifty percent reduction in the yard space their son had to play in. As he has ADHD, he requires a lot of room to run around in to use up all his energy. The tenants say this was one of the key reasons why they chose to rent this premise.

The property owner says that it was made clear to the tenants, within 24 hours of their move in date, that he intended to fence off the minor dwelling to provide both households more privacy and quiet enjoyment of their respective houses. The property owner expected the property manager to convey this to the tenants and it appears from the evidence that the property manager did not do so. The property owner did provide evidence that supports his contention that once the tenants moved in, he had conversations with them about the fence he was building and took some of their concerns into account, like allowing more space for them to park their car.

The tenants say they agreed to rent this premise on the promise that they could have full use of the backyard, as it was when they viewed the premise before signing up to the tenancy agreement. They say they relied on this promise to their detriment and that the landlord should compensate them for the loss of amenity they suffered because the property owner breached this promise. Further, they would not have rented the premise but for the promise they had the full use of the back yard.

I am satisfied, on the balance of probabilities that it is more likely than not the tenants were led to believe they could have full use of the backyard and were not informed about the fence until after they had sighed up to the tenancy.

I find that the tenants should receive $350.00 compensation for the seven months that they lost up to fifty percent of the backyard they had been promised they could have full use of. Unlawful entry

The tenants claim the landlord has entered the premises without consent or notice.

A landlord may not enter the premises during the tenancy except 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 is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

The tenants claim that on the last day of their tenancy, they were cleaning the property and the landlord entered the house using his key without notice and without the tenants consent.

The landlord denies this and says he stood by the open door and said hello and asked how things were going. He confirmed that he never went inside.

The tenants also say that the landlord entered the house without notice and without their consent later that evening after they had left but while they were still paying rent.

The landlord says at 5pm the tenants had moved out and around 10pm he looked across at the premise and saw the sliding door was left open and it was raining. The landlord texted the tenants to see if they were coming back. He says that when he knew they were not coming back, he went over and closed the open ranch slider, but did not lock it as he did not want to go inside. He says he went back in and secured the door the next day and found a cat had gotten into the house and peed on the bed.

The tenants say there were multiple other times the landlord entered their house without notice or consent but could not remember dates and times as it was over a year ago.

The tenants have failed to provide sufficient evidence to prove their unlawful entry claims on the balance of probabilities, so the claims are dismissed. Breach of quiet enjoyment

The tenants claim the landlord has harassed them.

Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”

The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be 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.

The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.

In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as:

Words, conduct, or action (usually repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”

The tenants confirmed that the basis for this claim was the real estate agent bringing potential buyers into the premise without notice or consent during the weekdays. Further, the tenants say that the female tenant had expressly asked the agent not to come during the day as her partner was working from 6am and the times the agent wanted to come her partner was resting as he does physical work.

The tenants also say they suffered stress and inconvenience as in the last month of their tenancy the agent came every week with potential buyers and they were asked not to be at home at those times. The tenants confirmed they had not been offered any rent reduction for this stress and inconvenience and they should have been.

The landlord accepts this was an inconvenience and says this was a foreseeable part of the sales process and that the agent had confirmed to him that the agent and worked with the female tenant about the schedules for viewing, had always given them advanced notice.

In this case, I am not of the view that the actions of the agent can be deemed to be harassment based on the definitions above.

Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered.

I do however find that the tenants suffered stress and inconvenience during the four weeks the property was being extensively marketed and award the tenants $585.00 compensation for the stress and inconvenience suffered. Particularly when viewings were conducted at inconvenient times and they loss the amenity of the premise they were renting when they had to go out while viewing were taking place. Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.

Because the tenants have substantially succeeded with her claim, I have reimbursed the filing fee. Name suppression

The landlord and tenants applied for non-publication of their names and identifying details.

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.

The tenants have substantially succeeded in their proceedings. I do not consider publication is in the public interest or justified because of the tenants conduct or any other circumstances of the case.

The landlord has sought and be granted name suppression in the prior proceeding. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.

Non-publication of both the landlord and tenants’ names and identifying details is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4857501 — net $962.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity of part of the yard for 7 months	$350.00	Loss of amenity of part of the yard for 7 months
Compensation: Stress and inconvenience of viewings	$585.00	Stress and inconvenience of viewings
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$962.00
Total payable by Landlord to Tenant	$962.00