What was Tenancy Tribunal case 4875310 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $20.44 immediately, calculated as

How much money was awarded in case 4875310?

Compensation: $1,500.00 awarded to tenant; Compensation: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4875310?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4875310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10942308-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4875310 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $20.44 immediately, calculated as

How much money was awarded in case 4875310?

Compensation: $1,500.00 awarded to tenant; Compensation: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4875310?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4875310?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10942308-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4875310 — State of repair

Claims and awards in Tenancy Tribunal application 4875310 — net $1,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for stress	$1,500.00	Compensation for stress
Compensation for a failure to maintain	$200.00	Compensation for a failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,720.44
Total payable by Landlord to Tenant	$1,720.44

Claims and awards in Tenancy Tribunal application 4875310 — net $1,720.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for stress	$1,500.00	Compensation for stress
Compensation for a failure to maintain	$200.00	Compensation for a failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,720.44
Total payable by Landlord to Tenant	$1,720.44

Order

[The landlord/s] must pay [The tenant/s] $20.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing which was held remotely. [The landlord/s] was represented by his legal counsel, [The landlord’s representative].
This decision may be read alongside my initial decision on jurisdiction of 30 July 2024 and covers [The tenant/s] claims for compensation and/or exemplary damages relating to the termination of her tenancy and maintenance issues. I apologise to the parties for my delay in issuing this decision.
This is a complicated situation, therefore I set out a brief summary of the background below. Before doing so, however, it is useful if I outline the requirements for proof. In the Tenancy Tribunal, applicants are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. All evidence and submissions provided by the parties has been considered in this light to form this decision, even if it has not been expressly mentioned in the decision. Background
[The tenant/s] and her former partner [The tenant’s former partner] moved into this property in March 2011. It is agreed that [The tenant’s former partner] arranged the tenancy directly with [The landlord/s] the owner remotely and he physically met neither of them at the time. They moved in with their son and [The tenant/s] son from a former relationship.
In 2018 [The tenant’s former partner] moved out amidst Family Court proceedings. [The tenant/s] continued to reside there with her sons until 2024. In 2023 there was a land slip on the property. Related to which [The tenant’s former partner] and [The landlord/s] spoke, and [The landlord/s] was advised that [The tenant’s former partner] no longer resided at the property. He subsequently spoke with [The tenant/s] regarding arrangements for slip remediation.
In February 2024 [The tenant/s] was in Australia temporarily while her son and his partner remained in the house. [The tenant’s former partner] came to the home, changed the locks and used the Police to assist him to regain occupation of the home. As part of this process, he obtained an email from [The landlord/s] regarding his entitlement to the property which he provided to Police.
[The tenant/s] submission is that [The landlord/s], by sending this email, assisted her unlawful eviction. She also says that he failed to maintain the property during the tenancy during the tenancy.
The questions for the Tribunal are therefore: a. Did [The landlord/s] act in contravention of the Residential Tenancies Act 1986 (“RTA”) in involving himself in [The tenant’s former partner] re- occupation of the premise on 22 February? b. Did [The landlord/s] breach his maintenance obligations with respect to leaks and draughts? c. If the answer is in the affirmative to either of the above, should any monetary awards be made?
The relevant sections of my jurisdiction decision are as follows: i. Order 1: tenancy occurred between [The tenant/s] as tenant and [The landlord/s] as landlord at [Tenancy address suppressed] between 2018 and 2024. i. In 2018 however [The tenant’s former partner] ceased to occupy the property. He took no formal steps to challenge this situation and essentially relinquished his possession of the home to [The tenant/s]. In short, he no longer occupied the home and he no longer paid rent to do so. Whether or not he did this intentionally by choosing not to challenge [The tenant/s] occupation or implicitly by allowing it to happen, the effect was the same. 1 ii. I am therefore satisfied that [The tenant’s former partner] relinquished his tenancy in 2018, or put another way, the tenancy between [The tenant’s former partner] and [The landlord/s] ended in 2018. 2 iii. [The tenant/s] was implicitly given the right of occupation in consideration for rent for a number of years. I am satisfied therefore that she, in 2018, became the sole tenant of [The landlord/s]. This is the just result of her permitted occupation for six years. 3 Did [The landlord/s] act in contravention of the RTA in involving himself in [The tenant’s former partner]’s re-occupation of the premise on 22 February?
[The tenant’s former partner] obtained possession of the home unlawfully. [The tenant’s former partner] was not a tenant of the property and had relinquised that right when he left the property some six years earlier. He was not entitled to possession of the premise when he took such in February.
This was in breach of Section 63(1) RTA: No person shall enter into possession of any residential premises in the occupation of a tenant except with the consent of the tenant or pursuant to an order for possession made by the Tribunal and duly enforced in accordance with section 106.
[The landlord/s] involvement in [The tenant’s former partner]’s re-occupation of the home is limited to an email he sent to [The tenant’s former partner], upon his request, to show Police. The relevant excerpt of that email is as follows [sic]: a. [Owner Company] ([company director] as a director), is the regal owner of the property at [Tenancy address suppressed] . b. This property was rented to [The tenant’s former partner] many many years ago. (Exact date I am not sure at the moment, because I am away working in south island.)... 1 Paragraph 25 2 Paragraph 26 3 Paragraph 30 c. [The tenant’s former partner] has informed me that due to some domestic problems, he has been evicted from the property and served a trespassed order by the police. [The tenant’s former partner] has also inform me that property has not been cared for. d. I was never informed of this. Therefore the present occupiers (his ex partner and new boyfriend) are not regal tenants and have no regal write to be in my property. e. The police have acted wrong by issuing trespass order on [The tenant’s former partner]. And never informed the owner of the property. f. I have given permission for [The tenant’s former partner] to have the locks changed and for him to have posession again.
[The tenant/s] claim against [The landlord/s] is for exemplary damages and compensation for the extra costs they were put to in moving earlier than intended, and the stress of the eviction. She says they were intending to leave the home in April and not February, and due to having to leave earlier, they have had to transport their pets at great cost and find pet-friendly accommodation earlier than intended.
[The tenant/s] submission is that [The landlord/s] failure to at the very least speak with her before he wrote his email was unlawful and has resulted in an extremely stressful situation. She says he was aware she was living there, and [The tenant’s former partner] was not, and in acting without all the information has caused an unfair and unlawful situation.
[The landlord/s] submission through his Counsel is that he was not aware that [the tenant/s] and [The tenant’s former partner]’s relationship had ended although he accepts he knew they had issues. His understanding is that he had a tenancy with [The tenant’s former partner] solely, therefore when contacted by [The tenant’s former partner] he provided him with the email regarding his right to occupation of the property.
The submission is that although he was aware [The tenant’s former partner] was no longer physically in the property, he was not aware that [The tenant’s former partner] had relinquished his tenancy. [The landlord’s representative]’s submission is that he could not have been aware of that given the Tribunal did not make the relevant finding until later. He submits there is a difference between [The tenant’s former partner] advising [The landlord/s] he was no longer occupying the tenancy and [The tenant’s former partner] advising he was no longer a tenant.
Pursuant to section 60AA of the RTA a landlord must not give a notice to terminate the tenancy, knowing they are not entitled to do so. Breaching this obligation 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.
Section 60AA is only available however if a landlord gave or purported to give a notice to terminate. [The landlord/s] did not do so here; therefore his actions were not a breach of section 60AA RTA.
[The tenant’s former partner] obtained possession of the property unlawfully. [The landlord/s] and the Police assited him in doing so. It is not appropriate for me to comment on Police responsibility here. The main liability for these events lies with [The tenant’s former partner]. My role however is to ascertain whether [The landlord/s] has any liability.
I am satisfied on the evidence that by February, [The landlord/s] had been aware that [The tenant’s former partner] had not been residing in the property for some months. He was also aware that [The tenant/s] and the children had been in the home since 2011. 4
He has taken an extremely inactive part in this tenancy until drawn into [The tenant’s former partner]’s underhand actions in February. I consider his failure to clarify the situation before he wrote a letter he was aware would be provided to Police, was negligent.
Accordingly, I find that [The landlord/s] assisted [The tenant’s former partner] to breach section 63 of the RTA. In doing so I find that he caused or permitted an interference with the reasonable peace, comfort, or privacy of [The tenant/s] and her family in the use of the premises. This is in breach of section 38(2) of the RTA. Contravention of this requirement in circumstances that amount to harassment of the tenant is an “unlawful act”, for which exemplary damages of up to $3,000.00 may be awarded.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and usually "indicates a particular pattern of behaviour directed towards another person". See MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the District Court held that there is no logical reason to doubt that harassment can (and should) extend to a single act of sufficient seriousness. 5 Sufficient seriousness has been held by the Tribunal to be where the landlord has carried out improper and illegal processes to enforce the tenant’s eviction from the premises.
I therefore consider that [The landlord/s] has committed an unlawful act under section 38(3) RTA. Where a party has committed an unlawful act intentionally, 4 There are emails from her to his partner at the time and his evidence in the jurisdiction hearing is that he knew [The tenant’s former partner] moved into the property with his partner 5 See Tie v Ashik Homes [2023] NZTT 4548053 and X v Craig Bowler [2024] NZTT 4587354 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) RTA.
Intentional has been held to mean “in the sense of deliberately and with full knowledge” of the breach”. 6 I do not find that [The landlord/s] had such intention. He was negligent and lackadaisical but was not acting with an intention to breach the law.
Accordingly, the claim for exemplary damages is dismissed and I turn to the claim for compensation. [The tenant/s] claims compensation for extra costs and for stress. For compensation to be awarded, she must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate.
I do not find it established that it would have been foreseeable to [The landlord/s] that in assisting [The tenant’s former partner] to re-access the home that [The tenant/s] costs in moving to Australia would be increased. He did not know she was in Australia or that she was intending to relocate there. Accordingly, the claim for travel costs must be dismissed.
The Tribunal does have the authority7 to award damages for stress and inconvenience. It does so on the basis that the law of contract allows such damages where the purpose or one of the purposes of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully. Commonly there is disagreement and negotiation and often this is because of disagreement over rights and obligations. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest. 6 TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 7 77(2)(n) RTA
[The landlord/s] here has breached his obligations. I am satisfied that it was foreseeable that should he provide advice to the Police that would result in [The tenant/s] losing her home, stress would ensue.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages. Those amounts have been increased in the 2022 Tribunal case A v Singh 8 to take into account inflation: “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Adopting that formular, I consider this a situation of stress and anxiety; having the Police involved and being evicted without notice is incredibly stressful. [The landlord/s] acted negligently without due care which has resulted in [The tenant/s] and her son losing their home of 13 years. As such, I find that an award of $1,500 is reasonable in the circumstances.

Did the landlord breach his maintenance obligations?

[The tenant/s] claims that [The landlord/s] has breached his obligations under section 45 of the RTA with respect to leaks and draughty windows. Section 45 RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
[The tenant/s] and her son both gave oral evidence about the considerable leaks and poorly maintained windows which caused draughts. I accept their evidence that they do not have photos given the nature of their departure from the home although they did provide one video of a considerable leak.
The evidence establishes that the arrangement [The tenant’s former partner] and [The landlord/s] came to was that [The tenant’s former partner] would undertake maintenance on the property and [The landlord/s] would only charge him a low rent in compensation. When [The tenant’s former partner] lived in the property that worked, however after he left no substantive maintenance was undertaken. 8 [2022] NZTT Auckland 4315225
In the usual arrangement the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. This is because a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. 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.
Section 11 of the RTA effectively states that a landlord cannot contract out of their obligations under the Act and correspondingly a tenant cannot contract out of their rights. [The landlord/s] had a positive obligation pursuant to section 45(1)(b) of the RTA to maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
Alongside the obligation to act upon a notification of a defect, I consider that a landlord has a positive obligation to ensure the property remains properly maintained. The RTA does not create an obligation for a landlord to inspect, but there are provisions that entitle a landlord to do so. I consider it an intention of the RTA that a landlord relatively regularly ensure they are complying with their maintenance obligations.
I find that [The landlord/s] has failed in that here given he did not visit his property for the 13 years [The tenant/s] resided in the property. [The landlord/s] had no contact from [The tenant’s former partner] between 2018 and 2023 and took no steps of his own to ensure the status of the property.
Although he has failed in his positive obligation, [The tenant/s] accepts that she did not contact [The landlord/s] after 2018 with any maintenance issues. Therefore, [The landlord/s] was not aware of the issues she was having with the leaks and draughty windows.
The question is therefore whether [The landlord/s] should be responsible for a lack of maintenance when he had not been advised of any defect. I find in this instance he should be, to a limited extent. This is not a situation of a landlord failing to inspect a property over the course of one or two years. [The landlord/s] has not inspected his property for over 13 years, nor did he know its state at the commencement of the tenancy.
As discussed in the jurisdiction order, 9 the Tribunal must also consider s 85 RTA in its determinations. This means I must consider the substantial merits and justice of the case as well as the law.
I must further take into account the law of mitigation which essentially states that a tenant is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. For example, if a landlord was not carrying out repairs I would expect a tenant within a reasonable time to: i. serve a 14 day notice to remedy the breach on the landlord; then ii. arrange for the repairs to be done and for the landlords to reimburse them the cost of the repairs (if the repairs were urgent) or iii. apply to the Tenancy Tribunal for a work order and compensation if the landlords failed to comply with the 14 day breach of duty notice.
Having considered the situation as a whole, I do not find an award of exemplary damages justified as [The landlord/s] was not aware of the maintenance issues. Additionally, pursuant to s109(2)(b) RTA, an application for exemplary damages must be brought within 12 months of the commission of the unlawful act. The origination of the leaks and the draughts are historical.
I do accept the evidence that [The tenant/s] was inconvenienced with respect to maintenance after [the tenant’s former partner] moved out. However, she took no steps of her own to engage [The landlord/s] on the matter. She was therefore essentially benefiting from the arrangement [the tenant’s former partner] and [The landlord/s] had to keep the rent low.
I consider an award of $200 justified, primarily to recognise that [The landlord/s] was negligent as to his maintenance obligations, and his obligations as a landlord generally. Running a tenancy is a business and comes with obligations and duties that cannot be ignored.

Should the filing fee be reimbursed?

Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Should suppression be granted?

Both parties seek suppression orders. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application 9 Paragraph 29 or in their defence to an application. As I consider both parties successful to an extent in their positions, 10 I allow both parties’ applications for suppression.

Tenancy Tribunal case 4875310 — State of repair

At a glance

Tenancy Tribunal case 4875310 — State of repair

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach his maintenance obligations?

Should the filing fee be reimbursed?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach his maintenance obligations?

Should the filing fee be reimbursed?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions