What was Tenancy Tribunal case 4870520 about?

The tribunal order states: The parties have reached an understanding regarding the tenant raising

How much money was awarded in case 4870520?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4870520?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4870520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10742382-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4870520 about?

The tribunal order states: The parties have reached an understanding regarding the tenant raising

How much money was awarded in case 4870520?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4870520?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4870520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10742382-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4870520 — Rent arrears

Order

The parties have reached an understanding regarding the tenant raising concerns about quiet enjoyment of the premises so that no order of the Tribunal is required.
The parties have also reached an agreement about fair market rent payable for the premises so that no order of the Tribunal is required.

Reasons

Both parties attended the hearing.
The proceedings relate to a periodic tenancy that started on 4 January 2023. The premises are one of four flats contained in a two-storey building that was built in the late 1960s or early 1970s. The owners of the premises are trustees of a family trust with whom the tenant has a family connection. The tenant’s former husband (from whom she was divorced prior to his death) was a trustee of the trust and their daughter is a beneficiary of the trust. This tenancy became possible because of that relationship.
The tenant has also lived in one of the flats in the late 80s with her former husband and their baby daughter at the time. Therefore, she has happy memories of the flats. In her submission to the Tribunal, she advised that she cherishes the lasting whanau taonga me nga toku whenua ki te kaianga that the property represents to the descendants. Further it is important to her to be living on whanau whenua taonga tuku iho.
The tenancy was managed by property managers acting as agents for the family trust. In or about January 2024, the current property managers took over management of the property. Market rent
The tenant applied to the Tribunal for an order for market rent. However, prior to the hearing, the parties reached a mutual agreement as to the rent payable. Therefore, the Tribunal is not required to determine the issue. Quiet enjoyment
The tenant also seeks guidance from the Tribunal regarding concerns that the landlord is breaching her right to quiet enjoyment of the premises. She does not seek compensation or exemplary damages but seeks to understand what amounts to a breach of quiet enjoyment and/or harassment.
The parties and I discussed quiet enjoyment at length at the hearing. As a result, the parties have reached a mutual understanding of each other’s perspectives on the matter; the law involved and are confident that they will be able to enjoy a better landlord/tenant relationship in future. Therefore, the Tribunal is not required to make any orders. However, the tenant has asked me to set out the guiding legal principles that apply and were touched on at the hearing. I do that by first summarising each party’s position and then briefly summarising some of the obligations in the Residential Tenancies Act 1986 (RTA) and the legal principles/case law on the matter.
The tenant gave evidence and made a detailed submission about matters that have occurred since the current property managers took over management of the tenancy in or about January 2024. Her concerns are: a. the property managers sent several communications to the tenant In January/February 2024 demanding that rent arrears be paid when in fact no arrears were owed. This was due to a communication lag in which the tenant says that she did not receive notice of the change of property manager and the new account number into which rent payments were to be made. Therefore, the rent continued to be paid directly to the owner. The tenant says that the tone of the communications made her feel inferior and unwanted and an eventual apology seemed insincere. The situation caused her much anxiety and stress; b. The property managers have sent numerous tradespeople to the premises to complete work to bring it up to Healthy Homes Standards which has been intrusive, and she says the quality of the work has been poor; c. Tradespeople acting on instructions from the property managers have not given required notice of their visits; d. An inspection notice issued in July has a non-conciliatory tone and attitude and the reference to the landlord taking photos at the inspection are concerning. She is also concerned about videos being taken at inspections.
In summary, the tenant says the property managers’ communications and actions have caused an erosion of trust and transparency in the relationship and she has felt bullied and discriminated against because she is an older, Māori woman.
For their part the property managers explained their position which may be summarised as follows: a. They manage many properties and have templates for communication which are not individualised. They acknowledge that perhaps their communication with the tenant did not start on the right footing; b. They deny discriminating against the tenant and assure her that this is not their intention; c. The flat required work to bring it up to Healthy Homes Standards, which is a legal obligation they must fulfil; d. They are required to obtain authorisation for all maintenance work from the property owners unless it is a Health and Safety matter that must be remedied; e. They understand and strive (by ensuring tradespeople also know) to comply with the RTA and the provisions for giving notice for inspections, maintenance work and the like. See section 48 RTA; f. They must complete inspections at the property which is a minimum requirement to ensure insurance cover over the building is not invalidated. Insurers usually require quarterly inspections of rental properties as a condition of cover; g. Photographs are necessary to document inspections. They use a 360- degree photo application which automatically “blurs’ particular personal items. They are happy to show the tenant copies of their inspection photos. The applicable law and principles
Section 38 RTA says: 38 Quiet Enjoyment (1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) 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. (3) Contravention of subsection (2) of this section in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act. (4) In this section premises includes facilities.
The term “quiet enjoyment” arises from common law principles that applied to leases. At common law, the word “quiet” is used in the sense of “peaceful” or “without interference”, not in the acoustic sense. The word “enjoyment” refers to not deriving pleasure from possession but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession” 1 . Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing interference with a tenant’s right to treat the property as their own home.
Section 38 codifies the common law concept of “quiet enjoyment” and several principles have developed in determining what amounts to a breach of quiet enjoyment.
Temporary discomfort or inconvenience does not constitute a breach. While section 38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort, or privacy of the tenant.
A single incident may still amount to a breach, but the consequences need to be serious enough to warrant a finding that “reasonable” peace has been disturbed. Whether the test is made out requires an objective assessment of the true nature and significance of the interference in the circumstances. 2
There are several circumstances in which the landlord’s rights are inconsistent with the tenant’s right to quiet enjoyment. In those cases, there is a balancing act to be made in determining the level of nuisance or intrusion that a tenant can reasonably expect to endure. These cases arise most commonly where the landlord is undertaking maintenance or renovation, inspecting the property, marketing the property for sale, or terminating the tenancy. These are all actions that the landlord is entitled to undertake, but that can quickly breach reasonable peace, comfort, and privacy if they are not well managed or become onerous in the way they are carried out. 1 Kenny v Preen [1963] 1QB 499 2 Marino & Ors v Wellington City Council (DC, Wellington, CIV-2013-085-660, 23 September 2013
The District Court has held in Lucas v Paterson 3 that where landlords are renovating property, tenants are required to put up with a degree of noise and general nuisance without compensation, with the judge commenting “Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.” However, there are cases in contrast to Lucas v Paterson in which construction activity on or adjacent to premises has given rise to a breach. In Marino 4 , it was considered relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.
Inspections can also give rise to claims concerning breach of quiet enjoyment. A landlord is entitled to inspect the property, but this, of its very nature, is an intrusion on the tenant’s right to quiet enjoyment. Clearly, the tenant must allow the landlord to inspect in accordance with s48. However, there is a line that can be crossed in which a legal inspection becomes a breach of s38(2).
One example in which that line can be crossed is in the taking of photos. In Maguire & Wakai v Brazier Property Management Ltd 5 it was held that the taking of 66 photos, 23 outside and 43 inside, many of which showed the tenant’s possessions, was an unreasonable interference. The photos were not being taken to record damage, but to record the whole property, and in this context, the photos were unreasonably intrusive.
In summary, whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the work being carried out, and the length and degree of intrusion.
A further point worth noting is that the Tribunal has taken the view in the past that a personality clash does not of itself amount to a breach of quiet enjoyment. Whilst it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach. In Smith & Olmstead v Floris 6 the Tribunal stated that: “...landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type”.
While “harassment” is not defined in the RTA, it generally means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular 3 Lucas v Paterson [2005] DCR 76 4 See n2 above 5 Maguire & Wakai v Brazier Property Management Ltd (TT 07/03760/CH) 6 Smith v Olmstead v Floris (TT 93/1404/AK) pattern of behaviour directed towards another person". 7 This implies an element of repetition and some actual adverse effect on the tenant. Some practical steps
As discussed at the hearing, claims regarding quiet enjoyment can be avoided if parties adhere to the RTA. Section 48 sets out strict timeframes for giving notice to inspect and carry work out to the property. It is important that where tradespeople are liaising with the tenants directly for access, that they also understand those rules as agents of the landlord. Where a landlord knows about future work, it can also be a good idea to give tenants advance warning to manage their expectations about access to the premises for that purpose.
The tenant expressed frustration with some maintenance issues at the premises not being repaired properly and it seems that she and others on her behalf have undertaken some remedial work.
If work done at the premises by tradespeople is not to a reasonable standard, it is important for the tenant to notify the landlord about it, so that they can remedy the matter. Tenants should not hesitate to notify the landlord in those circumstances.
Similarly, where there are maintenance issues requiring attention, tenants should notify the landlord of those issues so that the landlord can investigate the matter and carry out any necessary repairs. In fact, section 40(1)(d) RTA imposes a duty on tenants to notify the landlord of any defects at the premises. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
This might the longest decision I have issued in a situation where the parties reached mutual agreement and do not require Tribunal orders. However, I hope that this gives both parties some guidance and assistance in maintaining a cooperative and harmonious landlord/tenant relationship in future.
As mutual agreement has been reached, both parties are entitled to suppression of their names and identifying details. K Stirling, 22 August 2024 7 MacDonald v Dodds CIV-2009-019-001524, DC Hamilton, 26 February 2010

Tenancy Tribunal case 4870520 — Rent arrears

At a glance

Tenancy Tribunal case 4870520 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions