Published tribunal order
Tenancy Tribunal case 4871983 — Exemplary damages at 34 Ceramic Lane, New Lynn, Auckland 0600
Decided 27 Aug 2024 · Published 27 Aug 2024 · Application 4871983
Tenant favoured
- Exemplary damages
Order
- Mahadevan Subramaniam must pay Agave Simbolon $10,063.30 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,200.00 (637902-015) to Agave Simbolon immediately.
Reasons
- Both parties attended the hearing today.
- The tenant applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee.
- The landlord made a cross application for water rates arrears, compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. LANDLORD’S CLAIMS
How much is owed for rent water rates?
- The tenancy ended on 25 February 2024. The landlord provided a water rates invoice for $297.87, for the period 14 January 2024 to 11 May 2024, and sought reimbursement for the entire amount even though the tenancy ended on 25 February 2024. This means the landlord was seeking compensation for water consumption for an additional 10 weeks 6 days.
- The tenant produced an email and an estimate from the body corporate, which confirmed the amount owing at the end of the tenancy, which was estimated at $169.61. The tenant also proved they had made payment for this amount the same day as the body corporate had supplied the tenants with the correct amount owing.
- The landlord’s claim for $297.87 for water rates is dismissed, for the reasons set out in paragraphs [4] and [5] above.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The landlord says the tenant did not leave the premises reasonably clean. He says that he had to clean the rangehood filters and remove dirt from the easy clean waste trap in the bathroom. He sought compensation of $55.00 for cleaning the bathroom easy clean waste trap and $45.00 for cleaning the rangehood filters.
- The landlord was asked by Tenancy Services to supply receipts or invoices for the amounts he was claiming. He did not provide these. I asked him to produce evidence that he had incurred these costs and he said he did not have any receipts for the work done.
- I dismiss the landlord’s claim for $100.00 cleaning costs for lack of evidence to prove the claim.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The landlord says the tenant broke the toilet role holder and the letterbox lock during the tenancy. He claimed this damage was as a result of the tenant’s careless acts or omissions, that the damage is more than fair wear and tear, and the tenant should compensate him the $110.00 he says it cost him to repair the damage.
- The landlord was asked by Tenancy Services to supply receipts or invoices for the amounts he was claiming. He did not provide these. I asked him to produce evidence that he had incurred these costs and he said he did not have any receipts for the remedial work done.
- I dismiss the landlord’s claim for $110.00 compensation, to remedy these damages, for lack of evidence to prove his claim. Tenant failing to ensure number of residents does not exceed maximum allowed
- Mahadevan Subramaniam claims that the number of people living at the premises exceeds the maximum number allowed in the tenancy agreement.
- Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A Residential Tenancies Act 1986.
- The tenancy agreement specifies that the maximum number of 2 adults and 2 children may live in the premises during the tenancy. The landlord says this restriction is reasonable as this is a 2-bedroom house that would not accommodate more occupants than this without breaching the requirements set out in Schedule 2 of the Housing Improvement Regulations 1947 and the Health and Safety regulations.
- The tenant explained that her parents, who she had not seen since 2019 due to the Covid-19 pandemic, came to visit her and her family for Christmas 2023. The tenant’s parents arrive just before Christmas and were planning to return to Indonesia at the end of February 2024. They were excited to spend time with their children and grandchildren.
- The tenant’s parents were on a visitors’ visa, and it was evident they were not planning to reside in New Zealand permanently. They had a permanent home to return to in Indonesia.
- The tenant confirmed to me that her parents did not pay rent or contribute to the utility bills as they were invited by the tenant to come as her guests. They did not bring any furniture or pets with them, and they did not receive mail at the house.
- The landlord claims these guests were tenants/occupants, that he should have been informed these guests were coming to stay and his permission sought before they were invited. In addition, he says they were staying with the tenants to long to be classified as visitors. He sent the tenants an email on 25 January 2024 that contains “Guidelines for Guests Staying with a Tenant”. This guideline states: Tenants are allowed to have overnight guests, but they must abide by certain guidelines. All tenants must provide their landlord with information on any guest who stays with them for more than two days in a row. This includes providing the name and contact information of the guest. Guests are not allowed to stay longer than 14 days in a row without prior consent from the landlord. Tenants must also ensure that their guests respect the house rules and behave in a manner that does not disturb other tenants or neighbours. Guests should not make any changes to the property, such as painting or making repairs without prior authorization from the landlord. Additionally, guests should be aware that they are responsible for any damages caused during their stay. Tenants should also make sure that their guests do not bring any pets onto the property without written permission from the landlord. Tenants should be aware that if any pet causes damage to the property or disrupts other tenants, they may be held liable for these damages and disruptions. Finally, all tenants must provide adequate notice to their landlords if any overnight guest will be staying longer than two days in a row and within 14 days total within a given month. This ensures that landlords can take appropriate measures to ensure proper safety and security of their property and all tenants living there.
- The landlord sought to enforce these guidelines on the tenant. He also sought exemplary damages for her failure to abide by these guidelines and for failing to ensure number of residents does not exceed 2 adults and 2 children maximum allowed.
- The tenant asked the landlord to inform her where these guidelines came from and pointed out they are not reflective of the laws of New Zealand. The landlord did not confirm where he got these guidelines from. I also asked him where these guidelines came from and her told me “I don’t know”.
- Tenants have the right to the quiet enjoyment of their home, which means they are allowed to have guests to stay. The landlord is not allowed to put conditions into the tenancy agreement or enforce guidelines on tenants that impinge on their quiet enjoyment of the premise.
- While the landlord cannot restrict guests, he can place a limit on the number of occupants/tenants allowed to live at the property.
- Section 2 of the Residential Tenancies Act 1986 (“RTA”) defines a tenant but does not provide a definition of occupant. Section 2 of the RTA defines a tenant as being someone, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes: (a) a prospective tenant; and (b) a former tenant; and (c) a lawful successor in title of a tenant to the premises; and (d) the personal representative of a deceased tenant; and (e) an agent of a tenant.
- In accordance with this definition, Agave Simbolon was the tenant. Her husband and children were occupants.
- Occupants, while not defined in the RTA, are considered in the common law to be people who ordinarily live in the premise.
- Visitors are also not defined in the RTA. If a visitor stays for to long, the line between guest and occupant can get blurry. The RTA does not set any maximum number of days a guest can stay. Common law suggests that a guest/visitor has become an occupant when: a. The person has moved furniture or a pet into the premise; b. The person has no other place to stay; c. The person has starring paying regular rent and sharing utility costs; and d. The person is getting mail addressed to them at the premise.
- The tenant’s parents came to stay for less than 6 weeks on a visitor’s visa form Indonesia. They intended to stay nor more than 3 months. They did not have any furniture or pets at the premise. They did not have mail addressed to them coming to the premise and they were not paying rent or sharing utility costs. They were in all ways guests of the tenant that were visiting her.
- The landlord has failed to prove the tenant failed to ensure the premise had no more than the 2 adult and 2 children occupants permitted in the tenancy agreement.
- The landlord’s claim for exemplary damages of up to a maximum of $1,000.00 is dismissed for lack of evidence to prove his claim. TENANT’S CLAIMS Breach of privacy/quiet enjoyment and harassment
- Agave Simbolon claims the landlord has breached her quiet enjoyment, her privacy and has harassed her and her family.
- 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 tenant has provided evidence that proves the landlord breached her privacy, quiet enjoyment and harassed her as follows: a. On Sunday 14 January 2024, the landlord came to the tenant’s home without the statutorily required 24 hours’ notice to carry out maintenance work on the deck. He arrived at the door wanting to paint the deck and was refused entry by the tenant as she was about to go to church with her family. She informed the landlord that in the future she required 1 day’s advanced notice of his intention to come to the property to undertake maintenance so she was not caught by surprise and made to feel bad when she could not accommodate his sudden request for entry; b. On 14 January 2024, while the landlord was breaching the tenant’s privacy and quiet enjoyment he started to harass her by insisting she tell him who her guests were, why they were living at the property, what their contact details were, why they were there and why she had not sought his permission to have guest staying at the premise. He also accused her of intentionally concealing additional persons occupying the premise in breach of the tenancy agreement. The landlord followed this up with text messages insisting the tenant text him back the information he had requested about her guests; c. On Saturday 20 January 2024, the landlord continued to harass the tenant by email asking for the same information he had sought about her guests on 14 January 2024 and giving her 7 days to reply; d. On 22 January 2024, the tenant replied to the landlord, by email, informing him that they have not concealed any additional occupants and explained her parents had come to visit for the first time in 9 years since they had moved to New Zealand and that she was not aware that having guests to stay was a breach of the tenancy agreement or that she had to get the prior permission of the landlord before inviting her parents to come for a long overdue visit; e. The landlord continued to harass the tenant by email and sent a further email to the tenant on Thursday 25 January 2024 terminating her tenancy, giving her 4 weeks’ notice and informing her the last day of her tenancy was 24 February 2024; f. The landlord then sent a further email on 25 January 2024 with his “Guidelines for Guests Staying with a Tenant” as set out in paragraph [27] above. The tenant’s responded to this email the same day, and asked for the source of these guidelines and pointed out that it was unlawful to terminate her tenancy because she had her parents come to stay without his consent. She also informed him that she and her family has Covid-19 and it was inconvenient for them to have to look for alternative accommodation at such short notice when she and her family were so unwell; g. The landlord responded by issuing the tenant with a 14-day notice on 1 February 2024, requiring her to remove her guests from the premise and not allow them to continue to stay with her. The tenant says her parents were so distressed they purchased tickets to go back to Indonesia on 9 February 2024 when they had planned to stay until the end of February 2024. The termination notice and 14 notices caused the tenant and her family considerable distress, inconvenience and loss of amenity of the premise that they should have been able to enjoy with one another; h. On 2 February 2024, the landlord, after being told by the tenant the first retaliatory termination notice was unlawful, then issued the tenant with a further unlawful notice giving the tenant 63 days’ notice to move out of the rental premise, with no last day of tenancy recorded, and apologising from giving the tenant the first unlawful notice; i. The landlord sent a further email on 2 February 2024; about 15 minutes after the first one, expressing his disappointment about the tenant’s guests and admitted he had become aware of the guests because of his unannounced maintenance visit on 14 January 2024; j. From when the tenant got the first termination notice, she had ben frantically trying to find a place to live. The landlord was continuing to make her feel like she was a criminal for having her parents stay with her for what had been less than 6 weeks. On 8 February 2024, the tenant and her family were so distraught, the tenant agreed with the landlord she would move out and the tenancy would end on 25 February 2024.
- I find the landlord has breached his section 38 of the RTA obligations to allow the tenant to enjoy the privacy or her home and not to be subject to harassment. In breaching his s38 obligations to the tenant he has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.
- I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord engaged in a pattern of behaviour he knew was causing the tenant and her family trouble, worry and distress and that she was becoming worn down by his constant accusations about her not having sought his permission to have her parents come to stay and then he evicted her unlawfully and issued a 14-day notice telling her parents to go. This was deeply humiliating and distressing not only for the tenant, but also for her parents; b. The tenant and her family suffered distress, fear, worry and loss of quiet enjoyment of the premise she was paying to have as a safe haven from duress because of the landlord’s continual harassment of her and her family; c. It is in the interests of the tenant to receive exemplary damages for the loss of privacy, distress, fear, worry and loss of quiet enjoyment of the premise she was paying to have as a safe haven from such duress; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their quiet enjoyment obligations.
- I make an order for the landlord to pay $3,000.00 in exemplary damages for its breaches of s38 (1) to (4) of the RTA. accordingly. Refer to section 109(3) and (3A) and Schedule 1A of the RTA.
- Given the repeated and intentional nature of the landlord’s breaches, I find it appropriate to award the tenant the maximum amount of exemplary damages available for s38 of the RTA breaches.
- In addition, I find it reasonable to afford the tenant a rent rebate of $200.00 per week for the period for 14 January 2024 and 2 February 2024 (19 days) for the inconvenience, stress and humiliation she and her family suffered from the landlord’s harassment of her and her parents. The total amount of rent rebate awarded is $542.86 ($200 divide by 7 days = $28.5714285714 per day. $28.5714285714 x 19 days = $542.86) Retaliatory notice
- The tenant claims the landlord issued her with two retaliatory notices ending her tenancy, one on 25 January 2020 and one on 2 February 2024.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- On Thursday 25 January 2024, the landlord gave the tenant an email terminating her tenancy, giving her 4 weeks’ notice and informing her the last day of her tenancy was 24 February 2024. The landlord’s reason the landlord gave the tenant for terminating her tenancy was that on 14 January 2024 he discovered she had her parents visiting from Indonesia and he was upset that she had not sought his prior consent for them to visit and he did not like that her parents were staying for more than a week or two. The same day he sent her an email with “Guidelines for Guests Staying with a Tenant” that suggested guest could not stay for longer than two weeks. The tenant says she sought advice from Tenancy Services, informed the landlord he was in breach of the RTA, and she intended on making a claim to the Tenancy Tribunal. A few days later the landlord compelled her to evict her parents by issuing the tenant with a 14-day notice telling her parents to go.
- The landlord confirmed he terminated the tenancy as the tenant had failed to ensure the occupants were no more than the 2 adults and 2 children cited in the tenancy agreement and he was upset that the tenant had not sought his permission to have her parents come and stay and was also upset that the tenant would not provide him with her visitors names and contact details as he wanted to evict them.
- On 2 February 2024, the landlord, after being told by the tenant the first termination notice was unlawful and retaliatory, he issued the tenant with a further unlawful notice giving the tenant 63 days’ notice to move out of the rental premise, with no last day of tenancy recorded, and apologising from giving the tenant the first unlawful notice. The landlord sent a further email on 2 February 2024; about 15 minutes after the first one, expressing his disappointment about the tenant’s guests and admitted he had become aware of the guests because of his unannounced maintenance visit on 14 January 2024. These acts confirm to me that the second termination notice was also issued in retaliation for the tenant not having sought the landlord’s prior permission to have her parents visit her, his objection to them staying at the tenant’s home for more than 2 weeks, his upset at having his opinion about how long guests can stay challenged by the tenant and his annoyance she was trying to enforce her rights by calling Tenancy Services for advice and the result being he had to give her more time to vacate the premise than he had wanted too.
- I am not satisfied that the landlord issuing the two termination notices was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by the RTA or any other Act or any complaint by the tenants against the landlord relating to the tenancy.
- The tenant’s claim for retaliatory notice is dismissed for lack of proof to establish the link between them seeking to enforce their rights and notices being given to them. Termination of tenancy without grounds
- The tenant claims that the landlord has breached his obligations under section 60AA.
- Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- As set out in paragraphs [49] to [53] the landlord issued the tenant with the first notice on 25 January 2024 terminating her tenancy, with four weeks’ notice, because she had her parents staying with her for 6 weeks without his prior approval or consent and issuing her with a 63 day notice for the same reason on 2 February 2024 after being informed the first notice was issued unlawfully without grounds.
- I find the landlord has committed two unlawful acts.
- 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.
- Giving a termination notice without lawful grounds is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
- I find the landlord has committed two unlawful acts by issuing these two notices termination the tenant’s tenancy because of what the landlord perceived to be a breach of the tenant’s obligations under the tenancy agreement. In the giving of these two termination notices, the landlord failed to consider whether the grounds on which he was terminating the tenancy were lawful. They were not, as the ground on which he terminated the tenancy is not a permitted ground under the RTA.
- Where a party has issued a termination notice without lawful grounds, the Tribunal may award exemplary damages where it is satisfied it would be just to do so considering the effect of the unlawful act, the interests of the other party, and the public interest.
- I am satisfied it would be just to require the landlord to pay the tenant the maximum amount of exemplary damages available under s60Aa of the RTA, being $6,500.00, because: a. The landlord did not have lawful grounds to terminate the tenancy and when this was conveyed to him, he issued a 14-day notice to the tenant to evict her parents as he felt he was forced to give the tenant a longer notice period than he wanted to (63 days). However, the landlord did not cite any of the section 51(1) lawful reasons for issuing a 63-day notice terminating the tenant’s periodic tenancy; b. The tenant and her family suffered distress, fear, worry and the inconvenience of having to look for new accommodation when she and her family had Covid-19; c. It is in the interests of the tenant to receive exemplary damages for distress, fear, worry and the inconvenience of having to look for new accommodation when she and her family had Covid-19; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to only issue termination notices for lawful reasons. Reimbursement of filing fee
- Because the tenant has wholly succeeded with her claims, I must reimburse the filing fee.
- Section 102(4) of the RTA provides the Tribunal may reimburse the filing paid by an applicant that is wholly or substantially successful in their claims. Because Mahadevan Subramaniam was not wholly or substantially successful with his claims, I dismiss his application for reimbursement of his filing fee.