Published tribunal order
Tenancy Tribunal case 4907993 — Exemplary damages
Decided 22 Jan 2025 · Published 22 Jan 2025 · Application 4907993
- Exemplary damages
- Cleanliness
Party names are redacted in the official published order.
Order
- By consent, suppression of both the Tenant and Landlord names and identifying details.
- [The tenant/s] to pay [The landlord/s] $800.00 from the bond, calculated as shown in table below.
- The Bond Centre is to pay the bond of $800.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant has applied for the following: -Bond refund. -Exemplary damages for bond not being lodged. -Exemplary damages and compensation of $1,179.49 for harassment. -Exemplary damages for unlawful entry (claim subsequently withdrawn). -Exemplary damages for retaliatory notice. -Exemplary damagers for termination without grounds.
- The tenant has quantified his claims for a total of $20,979.46.
- The landlord has applied for the following: -$320.00 for oven and general cleaning. -$$240.00 for garden work. -$177.00 for a cracked window. -Exemplary damages for harassment.
- The parties lived next door to each other in close proximity.
- The onus is on both parties to prove their claims on the balance of probabilities.
- This tenancy commenced on 12 September 2023 and ended on 22 April 2024. Bond not lodged
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986 (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.
- The landlord does not dispute that the bond was sent to the bond centre around 5 months late. The landlord says this is the first time she has acted as a landlord, and this was all new to her.
- I find they have committed an unlawful act.
- 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.
- Having regard to all of the above, I do not find it would be just to impose any award for exemplary damages. The bond was not at risk as it was ultimately lodged with the bond centre; albeit late.
- This part of the tenant’s claim is dismissed.
Did the landlord harass the tenant?
- [The tenant/s] claims the landlord has harassed them and claims compensation and exemplary damages.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
- Breaching this 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". 1 Harassment may include words, conduct, or action (usually repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose (Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed), West Group, 2004).
- The tenant says that both parties agreed the landlord would look after the lawns and gardens, but she continually turned up without giving any notice. The tenant says the landlord visited at least 2 or 3 times per week and by the end of October it became too much as he was working night shifts and being disturbed. The tenant says he asked if the landlord could come when he was out at work, but she refused and said she would come whenever she wanted. The tenant says the landlord gave his telephone number to her son in breach of his privacy and he phoned and left a message. The tenant says the landlord was threatening, intimidating and abusive in their correspondence and they attached a trespass notice to his front door by banging with a hammer. The tenant does not dispute he subsequently breached the landlord’s trespass notice and his bail conditions but says that he was reacting to the landlord’s partner. The tenant says he had to give his notice and leave because he could not continue to live beside the landlord.
- I find that the landlord breached the tenant’s privacy when she gave out his telephone number to her son. However, this does not amount to harassment, and I do not find any evidence which would indicate any such type of behaviour. The landlord’s partner knocked the door to serve a trespass notice and a 90- 1 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. day termination notice but as there was no reply, he attached the notices with a small tack and used a hammer to do so. I accept his evidence that the hammer was not wielded in any aggressive manner nor used forcefully, and the tenant remained inside while this was being done.
- The messages and emails between the landlord and tenant show a picture of increasing miscommunication, misunderstandings, and distrust by both parties. I find no evidence that the landlord was abusive, intimidating, nor abusive. Nor do find any evidence that the landlord was carrying out garden work at any time without first notifying the tenant. The landlord was correct that she could enter the land without being in breach section 48 of the Residential Tenancies Act, but this must be balanced with the tenant’s rights of quiet enjoyment. I accept the landlord’s evidence that she was trying to work with the tenant, and he kept changing his mind as to who was responsible for the gardens and when the work was to be done. I find that the landlord’s suggestion that the tenant move on if he was unhappy does not constitute harassment, rather it is indicative of the breakdown in communication and the fracturing of the landlord and tenant relationship.
- The landlord is not responsible for her partner as she was not at home when he had an altercation with the tenant, and she did not cause or permit any of his actions.
- This part of the tenant’s claim is dismissed. Retaliatory notice
- On 5 March 2024, the landlord gave the tenant a notice ending the tenancy on 3 June 2024. The tenant claims the notice is retaliatory.
- Within 28 working days after receipt of a notice terminating the tenancy, the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. See section 54(1) RTA.
- As discussed at the hearing, the tenant filed his application on 6 June 2024 therefore this claim is out of time.
- This part of the tenant’s claim must be dismissed. Termination without grounds
- The tenant claims the landlord terminated the tenancy without grounds to do so.
- A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application. See section 60AA RTA.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 19(2) and Schedule 1A RTA.
- The landlord says she issued the notice to terminate the tenancy for combined reasons of renovations, and because of the tenant’s unpredictable and intimidating behaviour.
- I find that the landlord has knowingly terminated the tenancy without the grounds to do so. The renovations were not under any time constraints and there is no evidence that any material steps were taken or that the renovations were started within 90 days of the termination date. The landlord agreed it was probably true that she terminated the tenancy because of the tenant’s behaviour towards her, and it would then be a convenient time to complete renovations.
- I find they have committed an unlawful act.
- 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) Residential Tenancies Act 1986.
- I award only nominal exemplary damages of $500.00. While I acknowledge the tenancy was not terminated for grounds set out in section 51 RTA, I must also take into account the strong mitigating factors in this case. I accept the landlord’s evidence that the tenant came to visit her on 4 March when he knew her partner was not at home, he stood over her, he was swearing and intimidating, and he entered her laundry without permission. The landlord was shaken and immediastely locked up and went to the local Police Station where she was advised to issue a trespass notice. It is clear that relationships had broken down irrevocably and it was impossible for the parties to continue to live in such close proximity. Cross application
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant did not leave the premises reasonably clean and tidy in some minor areas, including the interior of the oven, and the gardens needed some work to bring them to a reasonable standard.
- I award $200.00 for cleaning and $100.00 for garden work as fair, reasonable and proportionate compensation. Is the tenant responsible for the damage to the landlord’s window at her premises?
- The landlord says that the tenant threw stones over to their property that hit their roof and cracked one of their windows.
- As I explained at the hearing the Tribunal does not have jurisdiction to hear this claim as it does not relate to the tenancy (see section 77(1) RTA).
- This part of the landlord’s claim is dismissed.
Did the tenant harass the landlord?
- A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) RTA. As the landlord is also a neighbour of the tenant, this section of the RTA applies.
- Breaching this 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 40(3A)(d) and Schedule 1A RTA.
- A single incident may amount to harassment, but the consequences require a degree of seriousness. Whether this test is made out requires an objective assessment of the true nature of the significance of the interference in the particular circumstances. 2
- The tenant says the landlord overreacted when he came to speak to her about the garden issue. The tenant does not deny that he breached the trespass notice, and later breached his bail conditions, but says he just wanted to sort it out.
- I find that the tenant harassed the landlord on 4 and 5 March. As above, I find that the tenant intentionally intimidated the tenant when he visited her on 4 March. On 5 March, the tenant does not deny that he stood outside the landlord’s bedroom window late at night after banging the walls and windows. I 2 Marino & Ors v Wellington City Council, DC, Wellington, CIV-2013-085-660, 23 September 2013. heard evidence from both the landlord and her partner, and I accept that this incident left them both in fear of the tenant.
- I find the tenant has committed an unlawful act.
- 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.
- Bearing in mind all of these factors, and the overall merits and justice of this case, I award $1,000.00 exemplary damages for harassment. Name suppression
- Both parties have agreed to name suppression for each other.