What was Tenancy Tribunal case 4898186 about?

The tribunal order states: Tanya Lieven must pay [The tenant/s] $1,620.44 immediately in accordance

How much money was awarded in case 4898186?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4898186?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4898186?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10810877-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4898186 about?

The tribunal order states: Tanya Lieven must pay [The tenant/s] $1,620.44 immediately in accordance

How much money was awarded in case 4898186?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4898186?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4898186?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10810877-Tribunal_Order_Redacted.pdf.

12A Palliser Road, Roseneath, Wellington 6011 Tenancy Tribunal Case 4898186 — Exemplary damages

Order

Tanya Lieven must pay [The tenant/s] $1,620.44 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
This tenancy commenced on 1 November 2023 as an assignment of a fixed term that was due to end on 31 January 2024. The outgoing tenants arranged the assignment which Ms Lieven consented to.
In December the parties entered into correspondence regarding the nature of the tenancy and as such by default it rolled over into a periodic tenancy from February. [The tenant/s] subsequently gave his notice and vacated on 24 March.
He filed these claims shortly after his departure seeking exemplary damages in an effort to address what he views as a range of acts and omissions by Ms Lieven, a seasoned landlord. [The tenant/s] is clear that the main motivation for his claims is to make the point to Ms Lieven that the law is there for a reason; landlords must abide by it and tenants are entitled to pursue redress when their landlords do not.
I address each of these claims separately below however firstly note that whilst I have carefully considered all evidence tendered by the parties, it has not all been referenced in this decision for brevity reasons. In coming to my findings, I have assessed each in accordance with the overriding law, the Residential Tenancies Act 1986 (RTA) and applied the civil standard of proof which is the balance of probabilities, or what is more likely than not. The applicant, [The tenant/s] here, bears that burden of proof.

Did the landlord breach her obligations with respect to the bond?

The parties all signed a bond transfer form prior to [The tenant/s] tenancy commencing. [The tenant/s] then paid his bond to Ms Lieven on 30 October 2023. On or around 15 December Ms Lieven submitted the bond transfer form to the Bond Centre which officially lodged his bond. [The tenant/s] submits that this was in contravention of section 19(1) of the RTA which states that a landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
Although Ms Lieven had already agreed to the outgoing tenants’ full bond being transferred to [The tenant/s] name, she wished to hold their bond until they had addressed some issues upon their departure. For this reason, she did not lodge the bond transfer form for some weeks.
Ms Lieven argues that she had to do this as [The tenant/s] was preventing the previous tenants from fulfilling their obligations (by not replacing the lightbulbs) and she could not release the bond until they had done so.
Section 19 RTA is very clear: where any person pays to the landlord...any amount by way of bond...the landlord shall, within 23 working days after payment is made, forward the amount received to...[the Bond Centre]...together with a statement of particulars.
The RTA intentionally modified the law of assignment with respect to residential tenancies. Section 2 defines an assignment as a transfer to a person of all of the rights that a tenant has under a tenancy agreement. S43C of the RTA details the effect of the assignment being that on the date of assignment, the outgoing tenant ceases to be responsible to the landlord for the obligations imposed on the tenant by the agreement and the RTA. Therefore, from the date of assignment the outgoing tenant has nothing more to do with the tenancy and the new tenant (the assignor) accrues all the rights and obligations afforded to them under the RTA. Correspondingly the landlord assumes responsibilities to the new tenants under the RTA.
The lodgement of a bond is a positive obligation on a landlord and is not contingent upon any arrangements regarding bond a landlord has with an outgoing tenant. Therefore, when Ms Lieven received [The tenant/s] bond, the statutory timeframe under section 19 commenced. The fact that his bond was to be lodged by way of transfer only means that the statutory time frame applied to her lodging the transfer form, not the actual monies.
To put it another way, from 30 October Ms Lieven had control over [The tenant/s] bond and as such was obliged within 23 working days to ensure the Bond Centre was provided with his bond. She did not do this; therefore she has breached section 19 RTA which is an unlawful act.
Where a party has committed such an unlawful act intentionally, the Tribunal may award exemplary damages up to a maximum of $1,500.00 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.
Ms Lieven is a seasoned landlord; I am satisfied because of this and on her evidence that she is aware of her obligations under the RTA, and as such find that this unlawful act was committed intentionally. I do not address the issue of intent specifically again in further findings of unlawful acts for the same reason.
In assessing exemplary damages for this breach, I take into account the following: a. The delay was not excessive. b. The procedure employed by all here was not standard (i.e. the bond transfer form was signed before the final inspection and the bond was paid to the landlord rather than the outgoing tenants). c. I am satisfied that Ms Lieven was not attempting to act in a deceptive way, it is more that she was remiss about complying adequately with her obligations. d. [The tenant/s] did not pick up on the error until compiling his claims. e. The impact on [The tenant/s] was minimal. f. There is no evidence of previous similar breaches by Ms Lieven. g. Regardless, bond money belongs to a tenant, and it is of significant interest to both the tenant and the public that the money is held securely with the Bond Centre during the tenancy and that landlords comply with their obligations under the RTA.
Having considered all of the above, I find that an award of $300 exemplary damages is appropriate.
As an aside I note that [The tenant/s] raised the issue of not having received a receipt for his bond. 1 At the hearing it was discussed that where a payment is made by electronic transfer, that is considered sufficient receipt to meet the statutory requirement.

Did the landlord breach her obligations pursuant to s45?

[The tenant/s] claims that Ms Lieven has breached her obligations under section 45 of the RTA to provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
I discuss each alleged breach separately below. Provision of the property
Under section 45(1)(a) RTA a landlord must provide the premises in a reasonable state of cleanliness. [The tenant/s] says rubbish was left at the property (in a black bin), the oven was unclean, the floor required vacuuming, a storage cupboard was not clean, there was a mark on the wall and some lights were malfunctioning.
Ms Lieven acknowledges that the issues she identified at the outgoing inspection were the oven, the mark on the wall, the garden and the lights. She offered to have the oven cleaned for [The tenant/s] but he declined given she made the offer some weeks into the tenancy, so it was redundant. A discussion was hard regarding the mark and [The tenant/s] was not worried about it. The previous tenants rectified the garden and with the lights Ms Lieven initially thought [The tenant/s] was replacing them but when he did not wish to, she arranged an electrician to do so. 1 S19(1)(a)RTA
Ms Lieven essentially submits that she was working with the previous tenants to rectify those matters and I accept she was. There is some dispute so to [The tenant/s] involvement in those matters, but in short I am satisfied that Ms Lieven was aware of her obligations under the law and was working to address those with the previous tenants.
I further note that they were all on their own relatively minor issues and [The tenant/s] did not raise concern with them at the time. Accordingly, this claim is dismissed. Healthy Homes
[The tenant/s] is concerned that Ms Lieven was not complying with her obligations under the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) as required by section 45(1)(bb) of the RTA. The main reason he is concerned is because he was not provided with compliance documents and so was not aware of the actual status of the property.
Section 13A(1CA) of the RTA requires a landlord to include in the tenancy agreement a statement as to the property’s compliance with the HHS. Ms Lieven says she provided this with the agreement that went to the original tenants and was entitled to assume they passed that on to [The tenant/s].
That argument may have had some merit but for the fact that she emailed the original tenancy agreement to [The tenant/s] with the amendment document 2 she drafted confirming the assignment with the cover comment: As requested - existing lease attached. As such, I am satisfied that [The tenant/s] was entitled to rely on Ms Lieven’s provision of the tenancy agreement as that being the document in its entirety.
Again, it is a positive obligation on a landlord to provide all documents making up the tenancy agreement to the tenant as required by section 13A and Ms Lieven was not entitled to rely on an assumption of what previous tenants may or may not do to fulfil that (her) obligation. This is an unlawful act however I address this breach further below in my discussion regarding the tenancy agreement holistically. Heating
[The tenant/s] is unsure whether the property meets the heating standard which requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. 2 Dated 24 October 2024
Ms Lieven questions [The tenant/s] credibility with these claims given, she says, he lived in the property for five months and did not notice the kitchen extractor fan or smoke alarms. She suspects his claims are just to extort money.
The HHS report 3 confirms the heating in the property is compliant and the evidence does not persuade me otherwise. Accordingly, this claim is dismissed. Ventilation
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
[The tenant/s] states that the extractor in the bathroom was broken for the duration of the tenancy and there was no extractor in the kitchen. The HHS report and photos establishes that there are qualifying extraction fans in the kitchen and bathroom, accordingly this claim is dismissed.
The evidence is however that on 9 January 4 [The tenant/s] advised Ms Lieven that the bathroom extractor was malfunctioning however this was not remedied during the tenancy. As the property did have a qualifying extractor but it was broken, this is an issue of maintenance rather than HHS compliance.
It is well settled that, 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. Furthermore, 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.
[The tenant/s] met his obligation in advising Ms Lieven on 9 January however the issue was not investigated nor rectified during the tenancy. Ms Lieven has no reason for this failure. Her failure to investigate, let alone rectify is a breach of section 45. In considering the elements of section 109 RTA and the circumstances I find that an award of $300 exemplary damages is just. The tenancy ended a relatively short time after the notification and the impact on [The tenant/s] appears to have been minimal. Smoke alarms 3 Ignite Heat Pumps Ltd 19/1/21 4 By text
[The tenant/s] had thought there were not compliant smoke alarms in the property however I am satisfied on the evidence that there were. This claim is dismissed.

Did the landlord provide adequate locks?

A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) RTA. This property does not have a standard lock but a keypad for entry.
[The tenant/s] submits that in giving out the code to tradespeople without his consent, and by changing the code between tenancies, Ms Lieven breached this obligation. In oral evidence Ms Lieven stated that she was unaware how to change the code and was unsure exactly which tradespeople had the code. [The tenant/s] says this is demonstrative of her lackadaisical approach to her obligations under the RTA and in particular his right to have a reasonably secure premise.
The question therefore is whether in providing the code to others, (other than the landlord and tenant) the premise remained reasonably secure.
The Tribunal has been clear that a landlord is not, in the usual circumstances, required to change the locks to a tenanted property in between tenancies 5 in order to comply with their obligations pursuant to section 46 of the RTA.
In my view this is however a different set of circumstances. I am satisfied that giving out an entrance code to a trade is akin to providing a key and not requiring its return. Another person, other than the landlord and tenant, having the code/key is not rendering the premise reasonably secure because that person would have the ability to enter the premise, without trace, at any point until the code is changed. This is exacerbated if it is provided to multiple trades over multiple tenancies without being changed.
Ms Lieven argues that [The tenant/s] should have raised this with her during the tenancy and had he asked to change the code she would have complied. I accept that had [The tenant/s] raised it, Ms Lieven may well have approved a code change. However, it is a positive obligation on a landlord to ensure a premise is reasonably secure and thus not reliant upon tenant complaint.
Accordingly, I find the landlord has breached section 46 of the RTA which is an unlawful act by providing the code to trades and not changing it after they have 5 Luis Potrero & Ors v Rentex Ltd [2022] NZTT 4311585 accessed the property. This is an intentionally 6 unlawful act and as such I consider the claim for exemplary damages. 7
Factors I consider relevant are: a. Ms Lieven did not act maliciously nor deceptively here, she was giving the codes to trades to ensure compliance with her maintenance obligations. b. The issue is that she was negligent in her consideration as to how this would impact a tenant’s privacy and sense of security, alongside her obligations pursuant to section 46 RTA. c. The effect on [The tenant/s] cannot be understated. He felt vulnerable and that his privacy had been breached. The knowledge that others had the code to his home heavily contributed to his decision to leave the property early. d. [The tenant/s] did not however raise the issue with Ms Lieven during the tenancy. e. It is in the public interest that tenants feel secure in their homes and providing a reasonably secure premise is fundamental to that sense of security. f. There is no evidence that the landlord has come before the Tribunal on such matters before and it is a particularly nuanced situation. g. The impact of this decision on this landlord will be considerable given Ms Lieven’s evidence that all their properties have access codes.
Having considered all of the above very carefully, I am satisfied that an award of $500 exemplary damages is appropriate. Did the landlord breach the tenant’s quiet enjoyment?
[The tenant/s] claims the landlord has breached his right to reasonable peace, comfort and/or privacy in his use of the premise by allowing trades to attend the property without giving prior notice. There are several issues with this, one being that some were given the code to access the home without his consent. Another that there are no drapes on the living area so anyone coming down the stairs can see in. [The tenant/s] says the private nature of the property appealed to him and was a central reason he took the tenancy.
Specific acts he references are as follows: a. On 31 January when an electrician entered using the code after [The tenant/s] had told Ms Lieven they were not needed. He had texted and 6 See above discussion regarding the element of intention. 7 Which in this case is awardable to a maximum of $1500. See section 46(3) and Schedule 1A RTA. called her on the 29 th to advise there was no power, asking for an electrician. When she did not reply, on the afternoon of the 30 th he arranged an electrician himself. On the 31 st Ms Lieven advised an electrician would attend that morning and he replied saying it was resolved. The electrician subsequently let themselves in when he was out. b. Ms Lieven asking [The tenant/s] to replace the light bulbs to assist the previous tenants and she would reimburse him. He declined and considers the request out of order. c. On a date agreed for an electrician, he attended four hours after the agreed time and knew the door code. d. On 9 January a pest controller came into the garden without prior notice having been given. e. Scaffolders attending on a more extensive basis than advised. [The tenant/s] says he had been told they would be there possibly “tomorrow” and it “wont take them long”. In fact they were there for three days and accessed the scaffolding at times from outside his property (although they were working on the upper story). f. A prospective tenant viewing that was arranged although the time was not agreed. g. Other trades attending the property without notice. [The tenant/s] did not note down the specific times but got a sense from them of regular intrusions.
It was primarily the issue of regular unannounced intrusions that prompted [The tenant/s] to vacate earlier than intended he says. He raised it with Ms Lieven by phone call and text however says the issue occurred regularly throughout the tenancy.
Ms Lieven’s response is as follows: a. She never requests nor allows trades to attend a tenanted property without notice. b. She had been trying to arrange an electrician ever since [The tenant/s] advised her (although accepts she did not communicate that directly to him) and wanted them to follow through when they had been secured given there was obviously an issue. c. She did not ask him to get the lightbulbs because she had understood that he had said he would do it. She provided an email she sent to the previous tenants just after a conversation she had with him confirming as much. 8 8 10 December 2023 She says she was discussing the matter with him and respected his decision not to undertake the task. d. She had asked the electrician to attend at a certain time and it was out of her control that he was late. It was however just before Christmas therefore a very busy time for trades. e. She had not been advised the pest controller would be attending nor had she asked him to; the last engagement she had with them was July 2023. f. The scaffolders were only there for three days to attend to a leak in the upstairs property. They could access the scaffolding from the upper story and so had no need to be around [The tenant/s] property nor did she know they were. She had been told there would be minimal impact on this tenancy as they only needed to be there briefly to erect the scaffolding. g. She did make one mistake with respect to arranging a prospective viewing at an inconvenient time however cancelled it as soon as it was pointed out to her. h. There were blinds available [The tenant/s] could have used for the lounge should he have wished to.
As discussed above, I am satisfied that it would have been a breach of [The tenant/s] quiet enjoyment for tradespeople to have his access code when he was not aware of it. It is one thing for a trade to be given the key/code in order to respond to a discussed issue but quite another when there is no agreement or understanding that the trade will be attending.
In these circumstances however I do not find it established in evidence that trades were given the code in unjustified or unnotified circumstances. I accept Ms Lieven’s submission that the electrician attending on 31 January was to establish what had been happening given [The tenant/s] had (on her understanding) been without power for two days. However, this situation could have been managed more appropriately. In particular it would have been prudent for Ms Lieven to reassure [The tenant/s] she was investigating when he first raised the issue. Likewise, a phone conversation on the morning of the 31 st would have ensured both had clarity as to what was occurring.
I find it more likely than not on the basis of the text and emails provided that [The tenant/s] did offer on 10 December to replace the bulbs and when he did not, [The tenant/s] arranged the electrician. I accept Ms Lieven did all she could to keep the electrician to their arranged time and it was just unfortunate that he did not.
The text evidence also shows that when Ms Lieven realised she had misunderstood regarding the viewing time she did not go through with it.
Breaching section 38 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. 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(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.
Notably, the definition of premises in s48 RTA 9 does not include land or facilities. Therefore, unnotified entry onto the land, but not the interior of the premises, might not be a breach of s48. However, in some circumstances, entry onto the land could be a breach of quiet enjoyment under s38 RTA.
Having considered the evidence carefully I do not find it proven in evidence that Ms Lieven breached [The tenant/s] quiet enjoyment to the extent of harassment. There were certainly misunderstandings however all trade attendances had been notified of, even if not specifically. There were certainly no intentional, repetitive acts undertaken in an effort to wear [The tenant/s] down.
This claim is therefore dismissed.

Did the landlord breach her obligations with respect to the tenancy agreement?

[The tenant/s] highlights the following deficiencies with the tenancy agreement: 9 A landlord’s right to entry a. Failure to provide a compliant HHS statement. As above I have found this established in evidence. b. Failure to include insulation details in the tenancy agreement. As this information was provided in the HHS report which was not provided to [The tenant/s], this requirement has also been breached. c. Failure to include insurance information.
Section 13(1A)(2) of the RTA states that the landlord must include in the tenancy agreement the following information about insurance of the premises: (a) if the premises are not insured, a statement that they are not insured; and (b) if the premises are insured, a statement— (i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and (ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
Ms Lieven submits that she does meet this obligation by including the following statement in the agreement: Any insurance cover taken by the landlord will not cover the tenant’s liability. 10
She says the property was insured on a monthly basis therefore sometimes it was insured and sometimes it was not. Accordingly, she could not categorically say in the tenancy agreement that it was insured.
This statement does not comply with section 13(1A)(2) of the RTA. It is generalised and unclear. Accordingly, Ms Lieven has committed an unlawful act. Pursuant to section 13(1F)(a) and Schedule 1A RTA exemplary damages may therefore be awarded up to a maximum of $750.00.
I am satisfied that an award of $200 exemplary damages is justified in these circumstances as Ms Lieven is a seasoned landlord who ought to be aware of her obligations. There was no material impact on [The tenant/s] however this is a clear and positive obligation on a landlord. Tenants are entitled to be made aware of the full situation before they sign a tenancy agreement.

Did the landlord contravene the provisions of the Act?

10 Meaning reference to careless or intentional damage

[The tenant/s] alleges that the landlord has included clauses in the tenancy agreement which are contrary to his rights under the RTA. He cites the following clauses: i. Carpets are to be professional cleaned at the end of the tenancy at the tenants expense. ii. The tenant shall not assign, sub-let or part with possession of the premise. iii. The tenant shall...cut the ... hedges (if any). iv. The tenant shall deliver the keys ... by not later than 4.30pm on the day the premises are vacated... v. The tenant shall not make any renovation, alteration or addition to the premise. vi. No notice is applicable. This tenancy is for a fixed term. vii. The omission of her phone number and email address.
No person may enter into any transaction, contract or arrangement, or do anything: a. that contravenes, or will contravene, any provision of the RTA; or b. for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act. 11
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A RTA.
Ms Lieven submits that the RTA always overrides any clause in a tenancy agreement that is unlawful therefore inaccuracies have no real world implications. She says [The tenant/s] should know this as he is a solicitor. She also states that this is an old-form tenancy agreement they have used and accepts it should be updated. She is clear she is aware of the following. a. Carpets are only required to be professional cleaned by tenants if they are not reasonably clean at the end of a tenancy and require such cleaning to reach that standard. 12 b. Tenants are entitled to assign their tenancy with landlord consent 13 and she says [The tenant/s] knew this too given he took on the tenancy by way of assignment. 11 See section 137(1) RTA. 12 Section 40(1)(e)(iii)RTA 13 pursuant to section 43B of the RTA c. There are no hedges on the property therefore this clause is redundant but points out it does say if any. d. Tenants are entitled to the full use of a property for any day they pay rent for it, therefore it is not lawful to require them to vacate by 4.30pm on the last day of their tenancy if they have paid rent for that day. She says this clause does not mean they have to leave by then only that they have to return the keys by 4.30pm. e. Tenants are entitled to make minor additions to the property with landlord consent as [The tenant/s] is aware she submits given she gave permission for him to have fibre installed. f. The provisions enabling termination on a periodic tenancy. g. [The tenant/s] was provided her email address and phone number alongside the tenancy agreement so although they were not noted specifically in the agreement, he was made aware of them.
Ms Lieven has used an outdated tenancy agreement. There are provisions which are clearly unlawful such as those relating to the carpets and assignment. I also consider the clause regarding returning the keys means on its ordinary reading that the property is expected to be vacant by 4.30pm which is not appropriate if rent has been paid for that day.
The impact of the deficient agreement was minimal on [The tenant/s]. He is articulate and intelligent and able to pursue his rights. The same cannot be said for renters. Therefore, whilst there was no prejudice in these circumstances, this agreement as it is, should not be used and requires amendment. Ms Lieven is a seasoned landlord and should/does know that she is required to provide a contract to her tenants that is lawfully compliant.
Ms Lieven’s argument that the RTA trumps unlawful agreements is deficient. Section 137 of the RTA clearly makes it an unlawful act for landlords to draft and provide unlawful agreements. This is because there is an imbalance of power between landlords and tenants, and those who hold the greater power, landlords, usually draft the agreements.
For this unlawful act I find that an award of $300 is justified. Of particular concern to me is that Ms Lieven did not accept that although a tenant cannot be forced to comply with an unlawful clause in a tenancy agreement by the RTA, there is also a positive obligation on a landlord not to include such clauses in a tenancy agreement.

Did the landlord attempt to terminate the tenancy unlawfully?

[The tenant/s] submits that Mr Lieven knowingly attempted to terminate the tenancy without grounds by providing him with only two options upon the fixed term’s expiry: signing a new fixed term or vacating. He says she did this by phone call and later by email. He wished to, and did, enforce his right pursuant to s60A(1) of the RTA to have the fixed term continue as a periodic upon its expiry however the process he submits was stressful and upsetting
Ms Lieven says she was trying to give [The tenant/s] a further fixed term lease to protect his rights given the property may have to be sold. She says it didn’t matter to her what tenancy he had but she was just trying to help him.
Under Section 60AA a landlord must not give or purport to 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 RTA.
Ms Lieven’s emails are clearly directed to only providing two options to [The tenant/s]. As follows: a. “we don’t do periodic leases. The 1yr fixed term option is what we provide” 14 b. “let me know by Wednesday so I can send through the lease extension if that’s what you are wanting to do or alternatively the notice to quit”. 15
The evidence establishes that Ms Lieven attempted to steer the tenancy the way she wished however did not enforce that when challenged. I do not find her actions amount to the giving of a notice to terminate or the purporting of same and as such must dismiss the claim.
Although I make this finding, I do note that a less confident tenant may well end up with an outcome they did not wish and one that is contrary to section 60A of the RTA. It was misleading of Ms Lieven to only offer these two alternatives and she would be well advised not to take such a stance in the future. Filing fee
Because [The tenant/s] was largely successful in his claims, I direct that his filing fee be reimbursed. Suppression 14 Email 10 December 2023 15 10 December
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 and allows discretion if in the public interest.
[The tenant/s] seeks suppression in the interests of ensuring accessibility to justice. He submits it is a fundamental right of a tenant to pursue their rights at the Tribunal but they will not be able to do so if they feel their future ability to rent is jeopardised. Ms Lieven submits that [The tenant/s] application is vexatious and therefore his name should be published.
[The tenant/s] has been largely successful in his application. I have found no basis to the claim that his application is purely revenue gathering and as such vexatious. Accordingly, I approve his application for suppression orders. Ms Lieven did not seek suppression and as such her details are to be published.

Tenancy Tribunal case 4898186 — Exemplary damages at 12A Palliser Road, Roseneath, Wellington 6011

Tenancy Tribunal case 4898186 — Exemplary damages at 12A Palliser Road, Roseneath, Wellington 6011

Order

Reasons

Did the landlord breach her obligations with respect to the bond?

Did the landlord breach her obligations pursuant to s45?

Did the landlord provide adequate locks?

Did the landlord breach her obligations with respect to the tenancy agreement?

Did the landlord contravene the provisions of the Act?

Did the landlord attempt to terminate the tenancy unlawfully?

Order

Reasons

Did the landlord breach her obligations with respect to the bond?

Did the landlord breach her obligations pursuant to s45?

Did the landlord provide adequate locks?

Did the landlord breach her obligations with respect to the tenancy agreement?

Did the landlord contravene the provisions of the Act?

Did the landlord attempt to terminate the tenancy unlawfully?