What was the outcome of Tenancy Tribunal case 4899924?

The tribunal order states: The tenancy of Connor Dowling at Unit/Flat 101, 100 Greys Avenue, Auckland

How much money was awarded in case 4899924?

Compensation: Tenant Goods: $500.00 awarded to tenant; Compensation: Utility Refund: $960.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Arrears: $5,423.57 awarded to landlord

What type of tenancy dispute was case 4899924?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4899924?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10616863-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4899924?

The tribunal order states: The tenancy of Connor Dowling at Unit/Flat 101, 100 Greys Avenue, Auckland

How much money was awarded in case 4899924?

Compensation: Tenant Goods: $500.00 awarded to tenant; Compensation: Utility Refund: $960.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Rent Arrears: $5,423.57 awarded to landlord

What type of tenancy dispute was case 4899924?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4899924?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10616863-Tenancy_Tribunal_Order.pdf.

Unit/Flat 101, 100 Greys Avenue, Auckland Central, Tenancy Tribunal Case 4899924 — Rent arrears

Claims and awards in Tenancy Tribunal application 4899924 — net $773.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,423.57		Rent arrears
Exemplary damages: Unlawful entry		$750.00	Unlawful entry
Compensation: Tenant goods		$500.00	Tenant goods
Exemplary damages: Changing locks		$500.00	Changing locks
Compensation: Utility refund		$960.00	Utility refund
Total award	$5,423.57	$2,710.00
Net award	$773.57
Total payable by Tenant to Landlord	$773.57

Claims and awards in Tenancy Tribunal application 4899924 — net $773.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,423.57		Rent arrears
Exemplary damages: Unlawful entry		$750.00	Unlawful entry
Compensation: Tenant goods		$500.00	Tenant goods
Exemplary damages: Changing locks		$500.00	Changing locks
Compensation: Utility refund		$960.00	Utility refund
Total award	$5,423.57	$2,710.00
Net award	$773.57
Total payable by Tenant to Landlord	$773.57

Order

The tenancy of Connor Dowling at Unit/Flat 101, 100 Greys Avenue, Auckland Central, Auckland 1010 is terminated, and possession is granted to Tuscancity Property Management Limited As Agent For J And J Rentals Ltd, immediately.
The Bond Centre is to pay the bond of $1,940.00 (3433412-007) to Tuscancity Property Management Limited As Agent For J And J Rentals Ltd immediately.
Connor Dowling must pay Tuscancity Property Management Limited As Agent For J And J Rentals Ltd $773.57 immediately, calculated as shown in the table below:

Reasons

The Tribunal must consider applications filed by both the landlord and tenant.
Only the landlord appeared at the hearing in Auckland. The tenant contacted the Tribunal the day prior to the hearing, to advise he was in Europe, and to asked to attend remotely. The tenant was given the phone number to call into the hearing room. However when the tenant did not call in, the registry contacted the tenant, who advised he was having trouble connecting, and requesting that his written submission be accepted as setting out his case. We confirmed to the tenant we would proceed on that basis.

BACKGROUND

The dispute relates to a tenancy at 101/100 Greys Avenue, Auckland. The tenancy is a studio apartment, and fully furnished.
A text message was sent from the landlord to the tenant on 29 November 2023, where the landlord stated that they were contacting referees, and checking on the date the tenant wanted to move in, then stating: Also, to clarify, the property is $455.00 per week, but we can include water & power for an additional $30.00 on top of the rent. Let us know which offer you would like to proceed with.
The tenant elected the additional payment option.
The parties entered into a tenancy agreement for a fixed term tenancy between 11 December 2023, and 10 June 2024. The date the agreement was signed was also 11 December 2023. The landlord is J and J Rentals Limited by way of an agent, Tuscancity Property Management Limited. The sole tenant is Connor Dowling. The agreement states that the rent was $485.00, and in terms of utilities: Utilities: Water and power are included in the weekly rent
On 15 May 2024 the landlord sent a 14-day notice to the tenant in relation to rent arrears of $920.00 at that time.
On 20 May 2024 the landlord emailed the tenant a notice for a “routine inspection” to take place on 22 May 2024.
That inspection proceeded. That what happened is disputed as I will discuss further below. If the landlord’s statement at the hearing was correct, they found the premises to be littered with rubbish, and they got a cleaner in to clean that rubbish for fear of rodents. Alternatively, it could be that the landlord considered the premises to have been abandoned by the tenant, so set about having the premises cleaned and rubbish/goods removed, and then the property relisted for rent, which is the tenants position.
The landlord tried to recover the cost of the cleaning from the tenant.
Also on 22 May 2024 the landlord placed an advertisement on Trademe for the property at 101/100 Greys Avenue, recording the available date as 27 May 2024. 1 I note here that the landlord claims this advertisement was placed in error and that they had intended to advertise another tenancy.
On 24 May 2024, the cleaner (SK Cleaning) emailed the landlord with photographs of the inside of the premises and the invoice for the cleaning. The invoice was for $438.00. The work included: a. Cleaning the shower, drain, toilet and basin. b. Vacuuming and wiping the floor. c. Cleaning skirting boards. d. Dusting and removing cobwebs. e. Cleaning cupboards and bench. f. Removing food rubbish. g. Disbursement (parking).
On 27 May 2024 the tenant emailed the landlord saying that he had not received notice the premises were to be cleaned, and he refused to pay for the invoice. The tenant also said that he had seen the Trademe listing, and required the landlord to remove that as his lease on the premises had not ended. The tenant requested a list of belongings that had been removed.
On 28 May 2024 the landlord emailed the tenant: Hi Connor I just saw some emails and this matter was communicated to me by my property managers. Last time you ever communicated with us was on March 18th 2024 with my office property managers. We never heard from you again. We have been emailing, texting and calling you every week for mainly you are not paying your rent but you haven't responded to my property managers. For the latest inspection we sent you an email and also called you 48 hours before the inspection on 20th of this month that there would be an inspection at the property on 22nd of May as you have not been communicating with us and not responding to our emails, text and phone calls. 1 The tenant has provided screenshots showing this advertisement. Upon arrival on 22nd May my staff found the property was left very dirty and you had no personal belongings as such at the property and we talked to the hotel management that they said they haven't seen you for a while entering the property. Some food scraps were left for a long time in the kitchen and to avoid any rodents and pests at the property we had to make sure these were cleaned. We have the photos and also video of the property on our files after this inspection which also shows that you have completely left the property. Can you confirm that you left the property and also the swipe card for the property to be returned to us. If you are still in Sydney and can not return the swipe card I will be in Sydney to inspect my property in the CBD and I can meet you there and collect the swipe if you are not returning. Also your rent has been in serious arrears and its 2 days as of today which we had applied to the tribunal for termination of your lease and as the rent is over 21 days in arrears we want to terminate the tenancy unless you pay this amount as soon as you can and then we can withdraw our application. I can see your fixed term tenancy end date is on the10th of June 2024 and you might have assumed the four weeks bond would cover until the fixed term end date but it will not and you will still be in arrears Connor. We need clear communication from you but this has not happened for quite some time now and my property managers have been very communicative with you so far which we never heard back from you. Happy to talk to you over the phone today if you wish or when I reach Sydney on Saturday but if you were to come back to the property you are welcome to return, just see us at the office first please.
Ultimately both parties have applied for orders from the Tribunal which are the subject of this decision.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The Tribunal must consider a claim for exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

LANDLORDS CLAIMS

Rent arrears

The landlord seeks an order that the tenant pay rent arrears and for termination of the tenancy.
The landlord has provided a rent ledger, showing the arrears as of the date of the hearing to be $5,423.57. I have no reason not to accept that ledger as correct, so those arrears are ordered in full. Termination of tenancy
The landlord seeks an order terminating the tenancy. As I explained at the hearing today, the outcome from this application would turn on the degree of success the tenant had, in particular whether the rent arrears after deducting the amounts ordered to be paid to the tenant, were under or over 21 days of rent (section 55).
In this case, the level of rent arrears as of the date of the hearing was over 21 days, therefore the Tribunal orders termination of the tenancy.

TENANTS CLAIMS

The tenant has filed written submissions, setting out his claims, as I will now address.
Unlawful entry
The tenant’s position is that the landlord unlawfully entered in premises, without the necessary notice being given.
The landlord states that a notice to enter the premises was sent on 20 May 2024, and the inspection was conducted on 22 May as notified. Analysis
The circumstances in which a landlord can enter the premises are limited in the RTA. The landlord can enter only in three circumstances. That is: a. At any time in the event of an emergency; or b. With the consent of the tenant given prior to the entry; or c. By providing notice that complies with the RTA (see section 48).
In this case, the two entries to the tenancy of relevance are the inspection on 22 May, and then later the cleaning.
As far as the inspection is concerned, I am satisfied the landlord gave the tenant notice for that, and I cannot see a breach arising.
However, in relation to the cleaning, the landlord has not pointed to any notice being given to the tenant for that work, but even then I am not sure what legal authority would have arisen for the landlord to enter the premises to undertake the cleaning even with notice as occurred here.
I say at the outset, that I do not accept what the landlord said at the hearing in relation to the cleaning that took place. The landlord states that there was food and other rubbish in the Tenancy that they needed to address, in order to ensure there are no issues with vermin. But the photographs that have been provided, and the invoice provided from the cleaners, do not support that the cleaning was targeted to only urgent, pest avoidance. It is crystal clear, that the cleaners have undertaken what is effectively a post-tenancy clean, and returned the entire premises to the standard they would undoubtedly be expected to be in, in order to rent the premises to another tenant.
Furthermore, the evidence of the tenancy being listed for rental at that time lends weight to a conclusion that the landlord is likely to have decided that the premises had been abandoned, and therefore set about re-renting it. The landlord states that the advertisement was an error on the part of a staff member, but I have received no evidence from that staff member supporting that to be the case. The landlord refers to another property in the complex being rented at the same time, but that has not convinced me that the only property the landlord intended to rent, was that other property.
I have no reservations in concluding that the landlord unlawfully entered the premises for the cleaning, at the very least in breach of its obligations under section 48, that being deemed an unlawful act.
I have set out the test for exemplary damages above. Taking that into consideration I find that the landlord’s breach is most likely to be intentional. The landlord is represented by a professional property manager, which undoubtedly would have known the relevant obligations to enter tenancy premises. The effect for the tenant in this case was very significant, I consider that it is likely that tenant goods were disposed of, and there was an egregious breach of the tenant’s privacy in his tenancy. There is a very strong interest for tenants and the public generally, that landlords only enter into Tenancy premises when there is lawful authority to do so. I consider it would be just to make an order of exemplary damages.
The maximum level of exemplary damages available for a breach of section 48, is $1,500. In this case, I consider an order of $750, 50% of the maximum would be indicated. I am minded that the effect for the tenant has been very significant, and that the breach is from a professional property manager, which should have been very familiar with the respective rights and obligations of the parties.
Disposing of property
The tenant claims that the landlord has disposed of his property in excess of $10,000 in value “including a laptop, cash, playstation 5, and clothing”.
The landlord denies that anyone would have taken property or goods from the tenant’s unit.
The landlord states they are not in a position to say what goods are currently in the tenancy. Analysis
Based on the photographs provided by the landlord, which have the ‘Post It’ tag applied on the documents from the landlord with the hand written “after cleaning” recorded, it is clear that the landlord has removed anything from the tenancy that was tenant property.
It is clear from the photographs that there was extensive rubbish in the tenancy, which could never be argued as having value. However I am not persuaded that everything shown in the photograph was rubbish, there were items that were probably of value such as a bath towel and other smaller items. I consider it very likely that all those items were disposed of.
The landlord states in defence that the tenant has not proven that he had the high value items in the dwelling, such as providing receipts etc. While that is true to a degree, just because receipts are not provided is not the same as saying they were not owned by the tenant or disposed of by the landlord.
But when I consider the photographs the landlord took, prior to the cleaning, I do not consider those show any high-value items, and ultimately it is the tenant’s responsibility to prove they were there prior to the landlord (attempting) to take possession of the premises. But as I have indicated above, I consider it certain there were items in the premises of some value, and the tenant should be compensated for that.
In the absence of more detailed evidence, I have determined that a fair approach would be to order a nominal amount of compensation for those items disposed of by the landlord and fix that amount at $500.00.
Changing locks
The tenant states that the locks were changed, meaning his friend could not enter the premises. The tenant said that he had been advised by the building manager that his card was active until 2025.
The landlord states they don’t know if the swipe card to the building has been deactivated. The landlord considers that it may have been deactivated routinely, but it could have been reactivated if the tenant went to the hotel reception. Analysis
I consider the most likely situation is that the landlord had the tenant’s swipe card deactivated. I have no reason not to accept the tenant’s statement that the card would not work for his friend who tried to enter the premises and that the building manager had advised the card would be active until 2025.
No evidence from the building manager has been presented supporting a non-intentional deactivation of the card.
If the tenant wanted to have a friend have access to the building and tenancy dwelling, he was entitled to give her the card.
For the reasons set out above, I consider the most likely situation is that the landlord assumed the tenant had abandoned the premises, so set about readvertising and reletting the premises, and deactivating the swipe card is consistent with that process. 2
Section 46 of the RTA relates to locks, and confirms that: Neither the landlord nor the tenant shall alter any existing lock or similar device, or add to or remove from the premises any lock or similar device, without the consent of the other given at the time that, or a 2 I note for completeness, that if the landlord considered the tenancy had been abandoned, it needed to obtain an order from the Tenancy Tribunal in order to have possession lawfully returned to the landlord. reasonable time before, the alteration, removal, or addition is carried out.
Deactivating an access card would offend that requirement.
Breaching section 46 is an unlawful act. I find that exemplary damages should be ordered. I consider it likely that this breach was also intentional again for the above reasons. The effect for the tenant is that he (or his friend) could not enter the premises at all. There is a strong interest for the tenant and public generally that locks in tenancy premises are not changed to exclude a tenant from entry to their tenancy premises. I consider it would be just to make an order.
The maximum exemplary damages that can be ordered for this breach is $1,500.00. Taking the effect of the breach into account, I consider an order of one-third of the maximum, $500.00, would be indicated and that is ordered.
Charging for water
The tenant considers that the landlord had unlawfully charged water charges in the rental, and he seeks to have that refunded.
The landlord states that there were no separate water bills, the water and power were included in the rent, and the water fell within regular body corporate charges. Analysis
This application is marginal, but I have determined the landlord must refund the water charges.
Section 39 of the RTA confirms that tenants are responsible for outgoings that are exclusively attributable to the tenant’s occupation of the premises.
In this case the landlord after the premises had been advertised, renegotiated with the tenant, to make the rental an all-inclusive rental, and therefore the rental increased by $30 per week. Technically the landlord cannot do that. The effect of section 22F is to require that the rent be advertised, the purpose of this provision was to ensure there is certainty and aligns with other prohibitions introduced by Parliament at the same time, including for example rental bidding. In short, the only rent that a landlord can charge is the rent that they advertise the premises at.
That being the case, I find the landlord must reimburse the rental amounts that were charged, over the advertised amount, or to put that another way, must reimburse the $30 per week additional charge for utilities.
So far the tenancy has run for 32 weeks, which means that the utility overcharge totals $960.00, which is to be refunded.
I record for completeness, that I have calculated the above amount based on the total amount that would have been due had all rent payments been made. But I have not adjusted the rent arrears ordered above in the landlord’s claim by reducing that by $30 per week, so one order will offset the other.
However, while I have determined that the landlord could not charge the utility costs on the basis that it has, that must therefore mean that it remains open to the landlord to pursue the tenant for any utility charges for the premises. But the landlord will need to establish what those actual charges were, such as providing invoices to the tenant, but that would be a matter for another day.
Rent receipts
The tenant states rent receipts were not provided.
The landlord states that there were no cash payments, and the tenant had access to its electronic portal where he could have viewed his rent records, and further they have emailed statements about the rent situation. Analysis
The provision of the RTA dealing with rent receipts is in section 29. That requires receipts to be provided for rent payments in cash, but there is no evidence of those payments being made. Otherwise, the landlord must provide statements to the tenant on written request, and from what I can see the landlord has done that. I cannot see that this claim has been established, so it is dismissed.

FILING FEE

Because both parties have substantially if not wholly succeeded in their claims, the filing fee could be released to both parties, hence they cancel each other out.

Tenancy Tribunal case 4899924 — Rent arrears at Unit/Flat 101, 100 Greys Avenue, Auckland Central,

At a glance

Tenancy Tribunal case 4899924 — Rent arrears at Unit/Flat 101, 100 Greys Avenue, Auckland Central,

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions