Published tribunal order
Tenancy Tribunal case 4885550 — Rent arrears at 18 Karamu Street, Ngaio, Wellington 6035
Decided 27 Jun 2024 · Published 27 Jun 2024 · Application 4885550
- Rent arrears
Party names are redacted in the official published order.
Order
- By way of declaration: the term of the fixed-term tenancy of [The tenant/s] at 18 Karamu Street, Ngaio, Wellington 6035 is reduced by agreement and ended on 15 June 2024.
- Justin Lemmens must pay [The tenant/s] $20.44 immediately in accordance with the following table.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- Unfortunately, Mr Lemmens applied 45 minutes prior to the hearing to attend the in-person hearing by telephone. Such applications are required to be made well in advance of a hearing given the potential prejudice to the other party and the Tribunal. I chose however to allow that request although the other option I had was to decline it and continue the hearing in his absence. I made this decision to ensure the expedient and fair resolution of proceedings pursuant to section 85 of the Residential Tenancies Act 1986 (RTA).
- [Tenant 1] and [Tenant 2] have applied for the following: i. Clarification of the date that the tenancy ended. ii. Their bond to be refunded. iii. Exemplary damages for an alleged breach of their quiet enjoyment during the tenancy and for a failure to lodge their bond.
- Mr Lemmens advises that he is seeking rent arrears and reimbursement of advertising costs. As he has not filed an application seeking these amounts, I cannot progress them in this decision other than the rent arrears as that is consented to by the tenants.
Which date should be the end date of the tenancy?
- [Tenant 1] and [Tenant 2] submit that 11 June should be the final day of the tenancy as that was the day they returned the keys to Mr Lemmens and the date they notified him of by email on 7 May.
- Mr Lemmens says the final date should be 15 June as that is the day prior to the new tenancy commencing. He says he made every effort to ensure the new tenancy could commence as early as possible to minimise the tenants’ costs given they had purchased a new home, and this was the earliest he could obtain.
- The background is that this was a fixed term tenancy for 12 months which commenced on 31 January 2024. On 4 April the tenants asked Mr Lemmens if he would be amenable to ending the tenancy earlier as they wished to change their plans and purchase a house. He agreed to discuss it, but no details were determined.
- [Tenant 1] and [Tenant 2] put an offer on a house and when it was accepted, they asked to end the tenancy on 24 July. 1 On 21 April Mr Lemmens said he would agree to end the tenancy early when replacement tenants could be 1 By text 8 April secured. He said he would market the property and the tenants would be liable for rent until the new tenancy commenced. They agreed and asked if the property could be advertised in May to reduce the risk.
- Mr Lemmens did commence advertising on 23 May but at a rate $80 higher than the current rental. This resulted in no interest and so two weeks later he reduced the rent to commensurate with the current rent. He had one applicant whom he has accepted.
- [Tenant 2] submits that they were prejudiced by the late advertising and then advertising at a higher rental and as such they should not have to pay the extra four days rent. They made their application for a reduction in the fixed term tenancy due to a breach of quiet enjoyment on 12 May and were not advised until the night before the hearing that Mr Lemmens had in fact found new tenants.
- I decline to consider the application for reduction of tenancy on the basis that the tenancy has ended. I do note that the ground the tenants applied to the Tribunal to end the tenancy early was because of an alleged breach of their quiet enjoyment. Mr Lemmens submits that this is disingenuous as they had purchased a house and that was the reason they gave him for ending the tenancy early. I discuss the alleged breach below but not with respect to the ending of the tenancy.
- Having carefully considered the parties’ oral evidence and written correspondence, I make the following findings: 2 i. No specific agreement to end the tenancy early had been made when the tenants contracted to purchase their new home. Any agreements were made subsequent to the confirmation of that contract. ii. Until 7 May, Mr Lemmens was working with a preferred end date for the tenancy in July. iii. The parties did agree 3 : a. That the tenancy would end upon replacement. b. That the tenants would pay rent until the day before the new tenancy commenced. c. That Mr Lemmens would advertise the property. iv. I consider it was an implied term of the agreement that Mr Lemmens would make reasonable efforts to obtain a replacement tenancy on the same terms. I make this finding pursuant to sections 43B(7) and 2 The evidential standard is the balance of probabilities, or what is more likely than not 3 By text on 21 April 85 of the RTA that agreements in such situations should be reasonable. v. It was not a delay of Mr Lemmens’ to commence advertising on 21 May given the information the tenants had given him prior to 7 May was that they wished to leave in July. vi. Given his knowledge of the market and that the advertisement came in winter, it was unlikely Mr Lemmens would be able to secure a rental at a higher rate than what the current tenants were paying. Therefore, the two weeks the property was advertised at $880 did provide a slight delay. vii. The tenancy has been replaced as of 16 June which, in the current market, was within a reasonable period.
- Accordingly, I am satisfied that the tenancy should end the day before the new tenancy started as the parties had agreed. I therefore declare 4 that the tenancy ended on 15 June 2024. As such the tenants are liable for rent until 15 June 2024. Did the landlord breach the tenants’ quiet enjoyment?
- [The tenant/s] claim that their quiet enjoyment of the property has been breached over the short tenancy. They say that after they had moved in Mr Keegan told them there would be some landscaping in the gardens, but the details were not discussed.
- Then in March they were told a digger would attend the following day, but it actually came a few hours later. From then until they vacated the property, their evidence is that most weekends contractors were working at the property with diggers and jackhammers. At one stage the gas line was accidentally cut, and they had to leave the house for a few hours. Another time the water was turned off while [Tenant 1] was halfway through her shower.
- They say that the effect of these works, which they had no prior knowledge off was stressful and disruptive. The works are directly outside their windows and has meant they had no usable greenspace. They say the noise upset their young child and meant they could not relax at weekends.
- Mr Lemmens’ evidence is that he did tell them at the viewing that some landscaping would be undertaken but agrees the scope was not clearly identified. He disputes that the work occurred most weekends, but says it was more like half the weekends of the tenancy. He says the work was in an effort 4 Pursuant to section 78(1)(a) RTA to improve the property for the tenants and every time he was notified of an issue, he immediately worked to resolve it.
- Mr Lemmens’ main concern with this application is that he was not made aware of the tenants’ concerns about the work generally as he was never told. He says they did not raise it as a reason for ending the tenancy and only advised him of the gas and water issues. Had they, he says, he would have addressed their concerns in any way possible.
- At this point it is important to reiterate that the onus of proof lies with the person or persons bringing the claim. It is the civil standard of “balance of probabilities “or “more likely than not” but it still has to be met. Bearing that standard in mind, I make the following findings: i. I prefer the tenants’ evidence that the works were not advised until after the tenancy had commenced. Ultimately regardless, it is agreed that the scope of the works was not communicated prior to the tenancy being agreed. ii. The tenants did not specifically raise their concern that their enjoyment was being breached. They did have their own reasons for this, but the fact remains that it was not until 7 May that Mr Lemmens was put on notice that the works were impacting their quality of life. iii. The decision to put an offer on another home was made within a month of the works starting, if not before. The works commenced on 1 March and the tenants advised Mr Lemmens they wanted to put an offer on a specific house on 4 April. iv. I accept the tenants’ evidence that the works occurred most weekends but on a sporadic basis. They were living with it and so would be most acutely aware. Mr Lemmens does live next door however by his own evidence was away most weekends.
- The law surrounding a right to quiet enjoyment is found in section 38 of the RTA. Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(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. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.
- The District Court has held in Lucas v Paterson [2005]DCR76 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 & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013, it was considered relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.
- 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.
- Breaching section 38 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. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
- Section 38 confers a positive obligation on a landlord, as such a breach does not occur only when notified and not rectified. Therefore, put more simply: although the tenants did not raise the beach as an issue, Mr Lemmens can still be held accountable.
- As I have found that [Tenant 1] and [Tenant 2] were not given notice of the works prior to accepting the tenancy and that the works occurred most weekends, I am satisfied that their quiet enjoyment of the property has been breached. They had trades and tools directly outside their windows on their weekends. The garden area they had contracted for had been removed. The level of communication between the trades, Mr Lemmens and the tenants was unsatisfactory.
- However, although I have found that section 38 has been breached, I am not satisfied that it amounts to harassment. Had the tenants complained and it still continued regardless, such a finding may have been more open to me. As it was, there was no intention to cause distress here. Accordingly, I must dismiss the claim for exemplary damages.
What monetary order is appropriate due to the non-lodgement of the bond?
- Mr Lemmens accepts he has not lodged the bond with the Bond Centre as he is required to do pursuant to section 19 of the RTA.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
- 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) RTA 1986.
- Mr Lemmens was aware of his obligation as it is stated in the tenancy agreement, and he was reminded by the tenants. I therefore, consider an award of exemplary damages. In doing so I take the following factors into account: i. Mr Lemmens has no excuse or apology for his failure. ii. The tenants have asked him several times to lodge it and as such the failure has caused unnecessary hassle and stress for them. iii. It is of significant public interest that landlords comply with their obligations under the RTA and ensure that tenant bonds are held by the Bond Centre as stakeholder as intended by Parliament. Bonds are tenant money and not for landlord to have unfettered control over. iv. Exemplary damages are designed to be a fine or penalty imposed to punish and deter and to mark disapproval of the conduct.
- Having considered the above, I find that an award of $500 is justified in these circumstances.
- I direct that the bond be immediately refunded to the tenants after the agreed deduction of the rent arrears.
Should any other orders be made?
- Because [The tenant/s] have substantially succeeded with their claims I reimburse the filing fee and approve their application for suppression.
- 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 or in their defence to an application. Mr Lemmens seeks suppression however as I do not consider he was substantially successful in his defence and there are no public interest reasons why I should suppress his details, I decline his application.