Published tribunal order
Tenancy Tribunal case 4873522 — Exemplary damages
Decided 4 Jul 2024 · Published 4 Jul 2024 · Application 4873522
- Exemplary damages
Party names are redacted in the official published order.
Order
- Quintessential Property Management Ltd (Trading As) Quiniovich Property Management Ltd must pay [The tenant/s] $5,420.44 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing held 21 June 2024.
- The tenants lived at the property from September 2017 to the 8 December 2023.
- The tenancy ended by the landlord giving 90 days’ notice to the tenants to end the tenancy because the owner was selling the property. The date of termination in the notice was 12 December 2023.
- The tenancy had always been managed by a property management company. Up until April 2023 the tenants had always had the same property manager who they got on very well with. In April 2023 after the retirement of the property manager, Ms Kingi became the property manager.
- Whilst the owners were known to the Applicants, they are not disclosed on the tenancy agreement. The landlord is Quiniovic Property Management Limited (Quiniovic).
- At the beginning of the hearing the owner of Quiniovic apologised to the tenant for the conduct of the agent Ms Kingi, who the owner said had now left the employment of Quiniovic. The claims.
- The tenant claims that the landlord has breached the Residential Tenancies Act 1986 as follows: a) By attempting to the terminate the tenancy on the 24 November. b) By failing to give her a rent statement when requested c) By failing to give her insurance details when requested. d) By insisting on the tenant performing obligations that were above the requirements in the RTA namely: • Requiring the tenant to clean to a standard that was well in excess of the requirement of tenants to leave the property in a clean and tidy condition. • Putting pressure on the tenants to vacate the premises earlier than the original termination date. • Making a promise that the tenant could leave earlier rent free and then reneging on that promise.
- The landlord acknowledged that it can be difficult for tenants to find properties at that time of year but said that the owner’s expectation the property would not be marketed until after the tenants had left in December.
- The tenant told me that despite the termination notice saying that she had to give 28 days’ notice to leave, the property manager told her that the owners had agreed that if she found a suitable place to move to, then they would release her from the tenancy early. This was corroborated by an email provided by the landlord at the hearing between the owners and the property manager where the owners confirmed that they would do that.
- The tenant says that on the basis that the landlord was being very accommodating to her, that she allowed the landlord to put the place on the market and to start marketing the property for sale in September rather than waiting till the end of the tenancy in December.
- As often happens, neither party had anticipated the disruption that the marketing campaign would have on the tenant. The tenant and her family had to leave the premises for an hour each for 10 open homes, there was pressure to keep the property tidy and clean, and this caused stress within the tenant’s household.
- In addition, the tenant was finding it very difficult to secure another rental property that suited her needs. She tells me that she viewed 37 homes, and only secured a property through acquaintances.
- In late October after securing a new property (which was a new build) to rent the tenant notified the landlord that she had found a place. She indicated that the proposed move in date was ‘show weekend’ 14 November but was very clear in the email to the landlord that the move in date was not confirmed and was dependant on the title coming through. Unfortunately, there were issues with the title coming through and the tenant’s new landlords could not give her a definite date for the commencement of her new tenancy.
- I record the above detail to illustrate the difficult circumstances that the tenant found herself in and the pressure that she was under.
- On the 3 November the landlord’s sale went unconditional. It was at that point that the landlord began to ask the tenant for a firm date for move out. Again, this understandable, if the tenant was going to move out earlier then the landlord wanted to bring the settlement date forward.
- The parties began communicating with each other over the termination date. Whilst the tenant said she was trying her hardest to get a confirmed date for moving, she was unable to commit to that date until she had sorted out her new tenancy.
- It is clear from the copies of the correspondence and submission between the parties that the Tribunal has been provided with that there was definitive change in Ms Kingi’s attitude towards the tenant after the property had become unconditional on the 3 November. On the 6 November Ms Kingi writes: “The owners need a definitive date to confirm that they can bring the settlement forward then you don’t have to pay rent until the 12 December 2023.”
- The tenant tells me that she was shocked to receive this email as she understood that she could leave at any time before the 12 December without giving notice and would not be charged rent. She says it was the offer of being able to terminate early that had prompted her to allow the landlord to market the property with her family in situ rather than to wait to the end of the tenancy. The tenant replied to the landlord stating this on the 6 November at 1.18pm and again confirming that she would not have a “confirmed date for moving into the new place until Friday 10 November (because) it is a brand-new property and the whole section of apartments need to be ready to be released.”
- The landlord then responded the following day, 7 November at 1.40pm saying: 1 “
- The tenant immediately sent reply email confirming that she did not have a definitive date for commencing her new tenancy and could not move out on the 24 November. The landlord then sent another email at 4.39pm that afternoon, which said.
- And on the 8 November the landlord sent a further email at 1.02pm saying:
- Following this the tenant sent a further email on the 10 November giving 28 days’ notice to end the tenancy on the 8 December, she says that she did this because 1 The extract is taken from the submissions provided to the Tribunal some of which included highlighted text. The highlighted text does not purport any special emphasis in this decision. she was worried that she would be forced to move out on the 24 November, as per the landlord’s emails. Despite confirming that she would give 28 days’ notice with the tenancy ending on the 8 December, Ms Kingi wrote to the tenancy again on the 14 November saying:
- There was further correspondence between the parties, during which the landlord stood by her position that the tenancy should end on the 24 November as the tenant had indicated that she had ‘found another place to live’ and in reliance of that statement the owners had brought their settlement date forward. Despite taking that position, after taking some external advice the landlord finally accepted by the 19 November, that the tenancy would end on the 8 December 2023.
- It appears from an email that the owner sent the tenants on the 17 November that the landlords property manager Ms Kingi had told the owners that the tenant had found a place to live but had failed to mention that it was subject to titles coming through, on that basis the owners had brought the date of the settlement forward to the 27 November 2023. This left both the owner and the tenant in a difficult situation. Did the landlord’s property manager Ms Kingi breach section s60AA?
- The tenant claims that Quinovic breached s 60AA of the RTA by telling the tenant that the tenancy was to end on the 24 November 2023 in the above emails.
- Section 60AA of the RTA provides: A landlord commits an unlawful act if they give or purport to give a notice to terminate 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.
- I am satisfied that Ms Kingi purported to give the tenant notice to terminate the tenancy on the 24 November knowing that she was not entitled to terminate on this date. I say this because: a) The emails of the 7 and 8 November plainly state that the last date for rental payment will be 24 November 2023, and “Your tenancy is up to and including the 24 November.” b) I am further satisfied that even after receiving the tenant’s email of the 10 November where she gave 28 days’ notice ending the tenancy on the 8 December and confirming that position in an email sent on 16 November at
- 43am , the landlord sent various emails between 14 November and 17 November asking the tenant to reconsider her position and stating that the final inspection would occur before the 27 November as the purchaser needed possession on the 27 November. (See email of the 16 November 2023 at
- 50pm). The landlord also advised that the termination date of the 8 December 2023 would be accepted in one email and then is redacted (but I think she meant retracted) in the next. c) I am satisfied that the landlord did this knowingly because she did so on more than one occasion and did so even after the tenant had stated and restated their position that the termination date had never changed by agreement. It appears from the correspondence that the landlord may have misunderstood the tenant’s earlier emails, that the tenant had a place to move into but did not have a firm date, but the tenant made it clear in her correspondence that she did not have a firm date and would not have a firm date until after the 10 November, despite this Ms Kingi sent the 16 November stated that the tenancy would end on or before the 27 November.
- Breaching s 60AA is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
- 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 award the tenant $4000.00 for this breach. This award takes into account the following: a) That the landlord repeatedly asserted the termination date was the 24 November or before the 27 November 2024 which was more than 2 weeks before the original termination date of 12 December. b) The effect on the tenant. The tenant told me that the period between 7 and 24 November was extremely stressful and disconcerting for her and her family. The tenant told me that she felt gaslit, misunderstood, and hopeless when challenging Ms Kingi’s assertions that the tenancy was now ending on the 24 November. She said that she did not want to give notice on the 8 November but felt it was the only way of retaining control over the narrative. She was fearful of being left with nowhere to live and losing her bond, she felt powerless and unheard. c) As a result of extreme stress, the tenant says she spent a considerable amount of time trying to find a solution, emailing the landlord, researching the RTA, trying to find a place to move her and her children too. The tenant is self- employed and having to divert her attention solely to dealing with the early termination of the tenancy, meant that she had to divert her attention away from work which had a significant financial impact on her business, and she tells me that she lost customers as a result. d) During this period the tenant had three children sitting national exams she said that the disruption and stress in the household made study difficult, the tenant could not continue with some tutoring her children were receiving and she believes that this impacted on their final grades. The tenant had told the landlord about the importance of her children sitting these exams in numerous emails. e) The tenant had to cancel a planned a significant family milestone celebration because it was due to take place after the 24 th November , and she was unsure if she could host that celebration in the family home. f) The public interest in ensuring that tenant’s tenancies are secured until the lawful end of their tenancy, and that agents do not put pressure on tenants to end their tenancies early. There is an inherent power imbalance between a landlord’s agent and the tenant once the landlord gives notice. When an agent takes advantage of this imbalance and asserts that power in a what I would categorise an unyielding and bullying way, with little if any regard for the tenant’s lawful rights, then the Tribunal should make award that reflects that conduct and acts as a deterrent to others. It was not lost on me that it appeared from all the correspondence that this situation arose out of Ms Kingi’s mistake, that she had misread the communications of the tenant, and had likely told the owner that the tenant had secured another property, which resulted in the owner bringing the settlement date forward. That was a matter that could have been easily rectified by Ms Kingi falling on her sword as soon as the tenant drew her attention to it. Instead, the agent ‘doubled down’ on the tenant, and put pressure on her to effect a change that would have covered up her mistake rather than being upfront with the property owner. Did the landlord fail to provide rent statements and insurance details when requested?
- The landlord accepted the tenant’s claims that they had failed to provide a rent statement and insurance details to the tenant when she requested same.
- Section 29(3) RTA provides that a landlord must give a rent statement to the tenant within a reasonable period of the time if one is requested.
- Breaching s 29(3) and s13(3) RTA are unlawful acts pursuant to s29(5) and s13(IF) of the RTA for which exemplary damages may be awarded up to a maximum of $ 350.00 and $750.00 respectively.
- The tenant asked for these documents on the 22 November as she needed same to assist her in finding and securing a new tenancy, 2 the tenant wanted to prove to her potential landlord’s that she had paid rent on time over her long-term tenancy.
- The tenant was entitled to these documents and should have received same without hesitation. I award the tenant $ 200 exemplary damages for each of these breeches. This takes into account the public interest in ensuring property managers comply with these provisions.
Breach of quiet enjoyment or s137 prohibited transaction?
- The tenant claimed that the landlord breached her quiet enjoyment by making her do cleaning well in excess of the obligation in the act to leave the property in a reasonably clean and tidy condition, and that the landlord threatened to take her to the Tribunal and seek the cost of new curtains of $99 per drape 3 per set if the tenant did not have the curtains and drapes cleaned.
- The tenancy ended on the 8 December. On the 11 December the landlord wrote to the tenant saying that they had completed the inspection on the 7 December (this was incorrect it was the 9 December) and listed a number of items that “require further attention prior to us releasing the bond to you.” As that email and inspection was after the tenancy ended it cannot be a breach of quiet enjoyment because it did not affect the tenants use and enjoyment of the premises during 4 the tenancy.
- However, the Tribunal can consider the claim under s137 of the RTA, which provides: (1) No person shall— (a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act (2) Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act. 2 By this stage the tenant was trying to find alternative accommodation realising that her new property may not be ready by the termination date. 3 See email from Ms Kingi dated 11 December 2023 at 3.11 pm 4 Own emphasis (3) Subject to subsection (4), any provision of any transaction, contract, or arrangement entered into in contravention of subsection (1) that would have the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act shall be of no effect. (4) All money paid and the value of any other consideration for the tenancy provided by the tenant (not being rent lawfully recoverable by the landlord) or, where the transaction takes the form of an option to purchase the premises to which the transaction relates, by the person on whom the option to purchase is conferred, shall be recoverable as a debt due to the tenant or prospective purchaser by the landlord.
- The obligation on tenants when they leave the tenancy is to leave the property in a reasonably clean and tidy condition (see s40 (1)(e)(i) RTA).
- Reasonably clean means clean to the standard an average, reasonable bystander would consider reasonable 5 , not commercially clean 6 , spotless hotel or motel standard. 7 Reasonably clean is not necessarily to the standard a landlord considers acceptable for a new tenant. 8
- The tenants cleaned the property thoroughly, and wanted to do the final inspection with the agent on the 8 December to ensure that any concerns were addressed and no money would be deducted from the bond. However as is a landlord’s right the landlord did not want to do the final inspection with the tenants, and the agent did the final inspection the next day 9 December 2023.
- The tenants took photographs of how they left the property. Those show a property that is well above the reasonably clean and tidy standard. The items on the list sent on the 11 December, cannot be easily seen in photographs and appear to be cherry picked, for example a hair found on the bathroom floor. Interestingly there is a large smear on the insider of ranch slider that was not there in the tenant’s photographs as they left the property on the 8 December. The tenants confirm that it was not there when they left and that when I asked the landlord at the hearing who else went into the property after the tenants left and before the inspection, the landlord did not know. It is possible that the sale agent and the purchasers went through the property after that time. The landlord did not check whether this had occurred.
- Ms Kingi in her email of 11 December says to the tenants: “ We will have our contractors attend to these items on Tuesday 12 December 2023 in preparation for the new home owners. 9 We would then claim the cost 5 Housing New Zealand v Holloway TT Auckland TT215/93, 8 February 1993 at 8. 6 Mills v Kiwi Property Care Ltd TT Hamilton 09/01418/HN, 27 July 2009. 7 Richards v Scully TT Christchurch TT2043/98, 21 July 1998. 8 Ace Property Management Ltd v Owens DC Wellington CIV -2008-1441, 17 December 2008 9 Own emphasis. from the bond.” Ms Kingi then invited the tenant to do the work themselves if they wished, they were to ring and pick up the keys from the landlord’s offices.
- The tenants were very frustrated and disappointed to get this email. They accepted that they had missed cleaning under the dishwasher (which incidentally I do not consider it the tenant’s responsibility as part of their obligation to leave the premises reasonably clean and tidy to pull out a dishwasher and clean under it). and went back to the property and cleaned it. As the key codes worked, they gained access without the keys but notified the landlord that they were completing same. The tenants were then told that all of the curtains had to be taken down and cleaned and rehung, and that the carpets needed steam cleaning, even though the tenant had already done that. and landlord had the tenants scrub the garage floor twice (when it was already at a reasonable standard). The landlord says she intended to charge $800.00 for the curtains, $160 for the cleaning and $300 for carpet cleaning. It is clear that the landlord expects that the tenant will pay this cost from the bond.
- I consider the agent’s actions in emailing the tenant saying that the property was not up to a reasonable standard when it was and threatening the bond to pay for cleaning, carpet cleaning and blind cleaning a breach of s137 of the RTA because is requiring the tenant to do much more than is required by the Act at the end of the tenancy.
- Breaching this obligation is an unlawful act to which exemplary damages of up to $1800.00.
- I award the tenant $1000.00 for this breach this takes into account: a) That the agent’s actions in requiring the tenant to do further cleaning gave me the distinct impression of being out of spite and as result of the tenant asserting her legal right to challenge the agent about the termination dates. b) The tenant had already left the property in a much cleaner condition than was her legal obligation. c) The landlord made it clear in her communication on the 11 December that the cleaning was necessary to prepare the home for the new owners, not to meet the obligations under the RTA. Ms Kingi was having the tenants do the work that was the owner’s responsibility and should have been at the sole cost of the owner. d) The time taken and the effect on the tenant and her family, the tenant said that she felt angry and belittled by having to clean the same items over and over and to justify that she had done so. e) The owner benefitted from the tenant leaving the property in and excellent condition as they did not have to do any further cleaning before the sale. f) That the landlord threatened the tenant’s bond, which she knew the tenant needed to secure further accommodation.
- As I have already addressed the tenant’s claims regarding the end of the tenancy under the claim for invalid termination, then I do not need to consider them under a breach of quiet enjoyment. Filing fee and name suppression
- Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee and awarded her name suppression as requested.