What was Tenancy Tribunal case 4910825 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4910825?

Compensation: Bond Not Transferred: $200.00 awarded to tenant; Compensation: breach of right to qui…: $860.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4910825?

The dispute type was not classified.

Where can I read the official tribunal order for case 4910825?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10806167-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4910825 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4910825?

Compensation: Bond Not Transferred: $200.00 awarded to tenant; Compensation: breach of right to qui…: $860.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4910825?

The dispute type was not classified.

Where can I read the official tribunal order for case 4910825?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10806167-Tribunal_Order_Redacted.pdf.

12 Woburn Street, Waipukurau, Waipukurau 4200 Tenancy Tribunal Case 4910825 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4910825 — net $1,087.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of right to quiet enjoyment	$860.00	breach of right to quiet enjoyment
Compensation: bond not transferred	$200.00	bond not transferred
Filing Fee	$27.00	Filing Fee
Net award	$1,087.00
Total payable by Landlord to Tenant	$1,087.00

Claims and awards in Tenancy Tribunal application 4910825 — net $1,087.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of right to quiet enjoyment	$860.00	breach of right to quiet enjoyment
Compensation: bond not transferred	$200.00	bond not transferred
Filing Fee	$27.00	Filing Fee
Net award	$1,087.00
Total payable by Landlord to Tenant	$1,087.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $1,087.00 immediately.

Reasons

The owner and the tenant attended the hearing. The property manager did not attend. Jurisdiction
The owner and the tenant are sisters. That being so, there is a question about whether their agreement might be excluded from the provisions of the Residential Tenancy Act (RTA) by s. 5(1)(n) in which provides that the RTA does not apply, “where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family”.
The District Court has held 1 “The effect of the wording “continue to be used” and “during the tenancy” are indicative of two concurrent occupations. The wording points to an intention by Parliament to exclude the Act in situations were [sic] a landlord, owner, or their family continues to “use” the premises “principally as a place of residence” throughout the and “during the tenancy” of an additional tenant or tenants. As such, the subsection is not intended to apply to a sole tenancy of a family member where there is no concurrent occupation.”
That is the position here. Also even if this had been an excluded tenancy under s.5(1)(n), under s. 8 RTA, “...the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree.”
The evidence shows that the parties entered into a residential tenancy agreement providing for the RTA to apply and (for part of the tenancy at least) to utilise the services of professional property managers, so that there would be an arms length landlord/ tenant relationship between them.
I find that the parties’ agreement is one to which the provisions of the RTA apply. Background
The tenant has always run her [business] from the premises. For some time, her daughter had also run a [business] from the premises.
Previously, the tenancy was managed for the landlord by [Property management company 1]. When that agency ended the landlord and tenant dealt with each other directly.
In November 2023 there was an attempt on the tenant’s life by arson at the property. The tenant suffered very significant harm. One of the bedrooms at the property was burned and unusable.
Due to the damage to that room, the rent had been reduced pending its repair. 1 Voss v Voss [2022] NZDC 677
On 9 February 2024 the tenant was notified, not by the landlord but by the property manager, that [Property management company 2] had been appointed as property manager.
The new property manager immediately advised the tenant of some changed expectations concerning the tenancy saying in an e-mail on 9 February 2024: “The owner has just confirmed that the rent is to go back up to $430.00 as of now.....the owner has stated there are to be no other dogs inside your home at any stage other than your small dog which she will also no longer be bringing her dog to your property. This will be added to the tenancy agreement and you and I will both sign the changes.”.......I will also add and addition (sic) to the agreement regarding any other business being run from the property. Sio there is no miss communication by any parties. As I said gong forward All issues etc are to come through me first and I will address these”
The tenant responded that those were all matters that had already been agreed and could not be changed unilaterally.
On 23 February 2024 the tenant was served with a 14 day notice alleging breach of the tenant’s obligations because: “The owner of the property gave permission for your [business] to be run out of your property. There was no permission given for any other business to be ruin out of the property. This can be classed as subletting”
Demands were also made on the tenant for overdue rent which she had continued to pay to the owner, not having been advised of the property manager’s account details
On 18 March 2024 the tenant discovered that the owner had arranged, without prior notice to her, to have Enable NZ remove a mobility ramp that the tenant had installed at the premises (with the owner’s permission) when their father was living at the premises.
Work to repair the fire damage was continuing. The property manager provided the tenant with a schedule of proposed dates that tradespeople would be there. The tenant says that they would often turn up at different times without giving her proper notice.
On 20 March 2024 the tenant received an abusive call from the owner complaining that she was not at the premises to let a painter in.
That day, the tenant received a 90 day notice that the tenancy would end on 19 June 2024, issued on the grounds that the premises were going to be put on the market for sale.
On 5 April 2024 the tenant gave notice that she would be vacating on 3 May 2024.
On 5 May 2024 the property manager provided the tenant with a uncompleted bond release form. The tenant was told that the bond had not been transferred out of the name of [Property management company 1] and that [Owner of property management company 1] was now in Australia. The bond has since been released to the tenant.
The property was taken off the market after 4 weeks and was relet at a significantly increased rent. Claims
The tenant’s claims are that: a. her right to quiet enjoyment of the premises of the premises was wrongly breached by: i. the owner and/ or property manager trying to enforce unilateral changes to the tenancy agreement, making unreasonable and unlawful demands on her and wrongly issuing a 14 day breach notice; ii. arranging removal of the mobility ramp without notice; iii. allowing tradespeople to come to the property without proper notice and being abused for not being there to let the painter in. b. the 90 day termination notice was retaliatory and was unlawful c. the landlord breached her obligations with regard to the tenant’s bond. Breach of right to quiet enjoyment
Under s.38 RTA, “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
Breach of that 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.
I find that the demands made by the property manager in her e-mail of 9 February 2024 were unjustified and unreasonable. The evidence from [The previous property manager] is that “Whilst I cannot find any photos that I still have on file of the room that [The tenant/s] daughter was using as a [business] room, it most certainly was used as one during part of the duration of my management of this home. [The owner] was fully aware of this as she gave [The tenant/s] permission herself to do so...”.
There is no legal basis on which the property manager could prevent the tenant’s daughter’s dogs which had customarily visited the property, from no longer visiting. The unusable bedroom, which led to the rent abatement had not been repaired and there was no basis for that rent abatement to have been unilaterally discontinued.
Making those demands, making demands for rent arrears when there were none and issuing 14 day breach notice when there was no breach were actions which in my view caused the tenant unnecessary and unjustified stress and anxiety and impacted on her right to quiet enjoyment of the premises.
The arrangements made by the owner, without consultation with the tenant or notice to her, to have the mobility ramp removed was also an unjustified and unreasonable intrusion on the tenants right to quiet enjoyment of the premises
I do not find that the tradesman coming to the premises at times different to those provided by the property manager breached the landlord’s obligations. The repairs were necessary and a schedule of expected visits from the tradespeople had been provided.
While the evidence shows that those matters were impactful for the tenant, who sought support from a tenancy advocate, I do not find that the landlord’s actions crossed the threshold to constitute harassment. 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.
As I see the evidence, the actions by the landlord, identified above, were wrong and insensitive but were not aimed at causing distress to the tenant.
The tenant is entitled to compensation which I fix at 2 weeks’ rent.

Was the notice of termination retaliatory/ unlawful?

Under s.54 RTA, a tenant may apply to the Tribunal for an order declaring that a notice of termination 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.”
The tenant claims that the notice of termination was issued because the owner was annoyed with her, in particular over the incident noted in paragraph 16.
An application under s.54 can only be made within 28 days of the notice being issued, “.....with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant’s control...” 2
The notice was given on 20 March 2024. The tenant’s application was brought on 10 June 2024. That is well outside the specified period and the Tribunal cannot consider that claim.
in terms of section 60AA, 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.”
The tenant’s position is that the grounds given in the notice of termination were not genuine and that the tenancy was terminated unlawfully.
There is strong circumstantial evidence to support that position. Clearly the owner was annoyed with the tenant at the time she instructed the property manager to give notice to end the tenancy. I note the tenant’s evidence that the property is of particular value to the owner because it gives access to other land she owns at the rear of the property. The premises were on the market for only four weeks before being relet at a higher rental.
Against that, the evidence shows that the owner appointed a sales agent who contacted the tenant looking to arrange marketing and viewings. It is not disputed that the premises were available for sale during that 4 week period. The owner has given direct evidence under promise that the intention was to sell the property but that it was taken of the market and relet when the hoped for price could not be obtained.
Under s.51(2)(a) “A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a) the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition”
As this is the tenant’s claim the onus is on her to bring evidence to prove on the balance of probabilities (ie. that it is more likely than not) that that was not the reason for the termination notice being given.
On balance, while the circumstances give rise to justifiable suspicions for the tenant, the available evidence is not such that I should disbelieve the owner’s direct evidence and find it proved there was no intention to sell the property when the notice was given. That claim is accordingly dismissed. 2 Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081. Bond
Section 21A requires that where the interest of a person for whom a bond is held changes, the Bond Centre must be notified. That did not happen and the landlord breached its obligations to the tenant.
Failure to send a bond to the Bond Centre within 23 days after the payment is received is a breach which constitutes an unlawful act. There is no equivalent provision making it an unlawful act to fail to change the details of the parties for whom the bond is held.
Accordingly, the landlord has not committed an unlawful act for which exemplary damages can be considered.
There was inconvenience caused to the tenant by the landord’s failure to update the bond details but fundamentally her bond was safely held and (eventually) accessible to her. I find that a modest award of compensation for the delay and inconvenience in being able to access the bond, due to the landlord’s breach, would be appropriate.
Because [The tenant/s] has had claims upheld I must reimburse the filing fee.

Tenancy Tribunal case 4910825 — Tenancy dispute at 12 Woburn Street, Waipukurau, Waipukurau 4200

At a glance

Tenancy Tribunal case 4910825 — Tenancy dispute at 12 Woburn Street, Waipukurau, Waipukurau 4200

At a glance

Award balance

Claims & awards

Order

Reasons

Was the notice of termination retaliatory/ unlawful?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the notice of termination retaliatory/ unlawful?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions