Published tribunal order
Tenancy Tribunal case 4930793 — Tenancy dispute
Decided 25 Nov 2024 · Published 25 Nov 2024 · Application 4930793
- Exemplary damages
- Harassment
- 14-day notice
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of all parties names and identifying details.
- [The landlord/s] must pay [The tenant/s] $400.00 immediately, being $400.00 compensation and $27.00 application filing fee.
Reasons
- Both parties attended this continuation hearing.
- An initial hearing and order (dated 5 September 2024) confirmed jurisdiction. The reason are outlined in that order but suffice to note again that the parties lived at the same address but in separate premises. The tenancy was in a self- contained apartment upstairs in a building that was used by the landlord as an office and workshop as well as a recreational facility. The landlords resided in the house located nearby.
- The tenant made an application for exemplary damages. In his application he wrote: No receipt of bond was supplied by the landlord, neither a receipt of the bond being lodged with Tenancy Services. Rental agreement was not written down or signed by either parties. The landlords entered the property without notice multiple times and stained the wooden floor which caused the apartment to smell of dangerous liquids for 4 days post application of the staining liquid. Landlord supplied notice to vacate the premises with under 14 days notice and with no reason supplied for the request, this has been requested with no response. Inappropriate messages, in person comments about my arse and how they want to smack it. Trying to control how often I use the heatpump. They were looking in my front door windows to see if anything had moved and said I was only allowed to move furniture around with prior consent.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
- When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
- This was a short tenancy of some four weeks. An amicable start deteriorated, leading to the tenancy ending. Prior tenancies had operated without apparent issue, albeit this jurisdiction was dormant at that time. Tenant application
- The applicant cited a number of grounds for exemplary damages. These were: a. No written tenancy agreement, b. No bond lodged, c. Harassment, d. Landlord entry, and e. Illegal notice to terminate. No written tenancy agreement
- A tenancy agreement must be in writing, signed and a copy provided to the tenant. See s 13 Residential Tenancies Act 1986 (“RTA”).
- A landlord who fails to comply with this commits an unlawful act.
- The landlords stated they had considered using the Tenancy Services House sharing/flat mate template. They advised the tenant they were not worried about signing an agreement. The tenant responded at that time he was happy to sign an agreement but that he was also not worried about it.
- The requirement of s 13 is very clear and it has not been adhered to. This failure was an unlawful act. No bond 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.
- The non-lodgement of bond was acknowledged. The landlord relied on their working assumption this tenancy was not a residential tenancy that required a bond taken to be lodged with the Bond Centre.
- The bond was returned to the tenant on 8 July 2024, some three days after the tenant moved out.
- The requirement of s 19 is very clear. However, the requirement is that the bond be lodged within 23 working days from receipt and in this instance, the bond was paid on 14 June 2024 and it was returned to the tenant within that 23 working day time period. Therefore, no unlawful act under s 19 was committed. Quiet enjoyment
- [The tenant/s] claims the landlords have harassed him.
- The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in this case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
- In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: “Words, conduct, or action (usu. 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.”
- From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder Palmerston North TT 12/87, 16 March 1987 the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
- The crux of this claim appears to be comments or remarks made in person or via messaging. The landlords submitted as three gay men, some comments were “flamboyant and of a sexualised nature”.
- Having considered the messages, I do not find the tenant can establish harassment via the messages. The flow of such conversations appears to have gone both ways and the landlord categorisation of it as banter is not considered unreasonable. A later reconsideration of such message as harassment is not sustained.
- Another impact on quiet enjoyment claimed was the stated demand/request of the landlords that the use of the heat pump be minimised when the tenant was absent (once). The inclusion of electricity in the rent meant the landlord carried the cost of usage but I have no evidence of excessive use by the tenant. There was no “fair use” agreement and no separate metering to ascertain just how much electricity was being consumed by the tenant. This landlord impact is accepted, albeit considered.
- I do not consider any lingering fumes from the landlord staining of the floor by the premises back door adversely impacted the tenant at the time. I note the discussion regarding shifting or rearranging some furniture; but it was, in my mind, of no significant impact that any specific order should be made.
- I do not find any harassment occurred and therefore no unlawful act under s 38 RTA occurred. The claim for exemplary damages is dismissed. Discernible impacts on the tenant’s quiet enjoyment by landlord actions are addressed later in the order. Landlord entry
- [The tenant/s] claims the landlord has entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- There was a lack of definition of boundaries with the building. I do not find it established the landlord entered the premises illegally, as while the landlord requested an inspection without the required 48 hours’ notice, I do not consider that occurred, or if so, it was with consent granted at the time.
- I also considered that some areas of interactions or impact were in spaces better considered as common areas and not for the exclusive use of the tenant. Such areas were more than likely identified and explained at the beginning.
- I dismiss the claim regarding landlord entry. Notice to terminate
- Section 60AA RTA makes it an unlawful act for a landlord to act to terminate tenancy without grounds. 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 landlord served a two week notice to terminate on the tenant. The tenant left before the end of that notice period. The landlord provided a handwritten template from their lawyer which they adopted. It was consistent with a termination of a house or flat sharing arrangement. It did not comply with the requirements of the RTA. The landlord said their lawyer advised them regarding their claimed exclusion per s 5 (1)(n) RTA. The nature of the advice appears informal and I am uncertain as to the extent of legal engagement sought.
- The requirements of s 51 (termination by notice) is very clear and it has not been adhered to. This failure was an unlawful act.
Should exemplary damages be awarded?
- As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
- Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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
- In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
- Having considered the unlawful acts within the context of how this tenancy formed and operated, I do not consider any intention of the landlord has been established regarding such unlawful acts and I decline to make any orders for exemplary damages here. Compensation
- Despite the finding above regarding exemplary damages, there were adverse impacts on the tenant and his use of the premises. One was pressure regarding the use of electricity, an inspection demand, and later how the tenancy notice was drafted and served. While the threshold for exemplary damages has not been met in this application, I consider compensation of $400.00 to the tenant for the series of adverse impacts is appropriate and this is awarded. This sum is weighted 50% for tenancy impacts and 50% with regard to the landlord notice to terminate. Filing fee
- Because [The applicant/s] has substantially succeeded with the claim insomuch the jurisdiction was confirmed and some compensation was ordered, I have reimbursed his filing fee. Suppression
- Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
- The tenant did not request suppression in his application. However, this was sought at the hearing by both parties. Given the nature of some of the application and evidence regarding specific interactions, I consider the parties interests in being afforded suppression outweighs any public interest in this matter. Suppression is ordered but the landlords in particular should be aware that any future repetition that sees further applications to the Tribunal may not repeat such suppression.