Published tribunal order
Tenancy Tribunal case 4953900 — Tenancy dispute at 75 Papatupu Way, Kumeu, Kumeu 0810
Decided 7 Nov 2024 · Published 7 Nov 2024 · Application 4953900
Party names are redacted in the official published order.
Order
- The tenants’ names and identifying details must not be published.
- Ihome Property Management Limited as agent for LDW Property Management Limited Willa must immediately pay [the tenants] $3,627.00, calculated as shown in the table below. DescriptionTenant Compensation for emotional harm$3,600.00 Filing fee reimbursement$27.00 Total award$3,627.00
Reasons
- The tenants attended the hearing in person with their three children. 1 A Spanish interpreter assisted them.
- Willa Zhao, the property manager, and Alice Zhang, the office administrator, attended for the landlord’s agent.
- The tenants claim the landlord entered or authorised entry to the premises without lawful notice or consent. They seek damages. Legal principle
- 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, repairs, and maintenance. 2 The events
- The tenancy began in August 2023 and was for a fixed term on one year.
- The tenants (“Mr A and Ms B”) have three young children, one of whom was a newborn at the time of these events. They are Spanish nationals and have not lived in New Zealand long. Their English ability is a work in progress.
- At 1.59pm on 9 July 2024, Ms Zhao gave the tenants notice by email that the landlords would “visit the house” at 10.00am the next day. The notice read: I hope this message finds you well. I am writing to inform you about an upcoming visit to the property at 75 Papatupu Way Kumeu. Landlord is planning to visit the house at 10 AM on 10/07/2024. Please be assured that we will respect your privacy and aim to minimize any inconvenience. Thank you for your cooperation and understanding. If you have any questions or concerns, please feel free to contact property manager directly. Willa Zhao
- Just twenty-nine minutes later, Mr A emailed back that the time “is not possible”, but helpfully confirming the next day would be suitable: 1 This is a reserved decision. I heard the matter on 5 November 2024. 2 Residential Tenancies Act 1986 (RTA), s 48(1) and (2). We can receive them on Thursday from 10:00am. The time you previously communicated is not possible as I am not in Auckland, and I need to be at home since my wife does not speak English.
- Ms Zhao did not respond.
- It was not until the next day at 9:09am that Ms Zhao followed up by text, saying:
The lanlord going to have look your house 10am today, some one at home?
- She attempted to phone Mr A who did not answer because he was working.
- At 9.22am on 10 July 2024 (only 38 minutes before the intended entry on the premises, that Ms Zhang (the landlord’s administrator emailed Mr A: Should be today not tomorrow.
- Mr A, who was preoccupied with work, did not see the email until too late.
- Meanwhile, the “landlord” mentioned in the landlord’s email proved to be two women, neither of whom spoke English, unexpectedly came to the tenant’s house. Only Ms B was home with her children. Ms B did not understand what the women were doing at the door because Mr A had told her the landlord might come the next day, not this day. She spoke no English and could not communicate with the women (who evidently only spoke Mandarin) due to the language barrier.
- Presumably, the women telephoned Ms Zhao because shortly afterwards Ms Zhao telephoned Ms B. Ms Zhao speaks English as a second language. She could not communicate with Ms B. Ms Zhao ended up speaking with Ms B’s son, Jeremy, who is perhaps about 12 years old. His English is also limited.
- Jeremy says that Ms Zhao told him that she had spoken to his father who had said the women could come to the house. Ms Zhao says that the Jeremy said the women could come in.
- Ms A was mortified by the unexpected visit. She had just had a baby, so there were nappies lying about. She is very house proud but had not known the “visit” would occur, so she had not tidied the house up at all. Her young daughter was in bed with the flu and had to get out of bed. The women opened cupboards and took photographs. She felt very embarrassed.
- Mr A was outraged when he found out. He thinks the landlord gained entry dishonestly and that it was a gross invasion of his and his family’s privacy. The entry occurred despite the fact that he had clearly refused the visit. He had stated that the reason the visit was “not possible” at the suggested time was because he would not be the home with his family, and he could not speak English. Discussion
- Ms Zhao’s notice gave only 20 hours’ notice. It was well short of the 48 hours’ notice required for an inspection under s 48. It was unlawful.
- Ms Zhao expressed an unawareness that the landlord viewing the premises was tantamount to an inspection. However, if it were not an inspection it would be unlawful in itself because “viewing” is not a permitted purpose for an entry to even occur.
- Ms Zhao submitted that the bad notice was cured by the tenants giving the women consent to enter the premises over the phone. However, I prefer the evidence of the tenants’ son that he believed Ms Zhao had spoken to his father with the implication that he had approved the visit.
- Any purported consent was not “freely given” under s 48. In any event, he is a minor and not a tenant, so he could not give a valid consent.
- I find it proven that the landlord unlawfully entered the premises.
- I turn to consider compensation for the breach. In this case the tenants seek compensation for emotional harm, namely general damages. General damages - principles
- At the hearing, I gave an indication I had in mind ordering the landlord to pay each tenant $250.00. However, after the hearing I reacquainted myself with the relevant case law and must concede those amounts are inadequate.
- In Palmer v Housing New Zealand (No 2) 3 , the Tribunal held that when assessing the quantum of general damages, the Tribunal must consider the: a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
- Recently, the Tribunal’s power to award compensation was increased from $50,000.00 to $100,000.00 by s 50 of the Residential Tenancies Amendment 3 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993. Act 2020, which means the Tribunal’s orders for general damages can range as high as $100,000.00 if such harm is proven.
- The Tribunal’s general damages awards have historically been low. My indication of $250.00 per tenant was in line with earlier decisions.
- However, recently in Birch v Otautahi Community Housing R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 4 In the case before His Honour, the tenant had returned to her home and found contractors had entered her unit without her permission. The landlord was undertaking asbestos removal work throughout the complex’s unit. The work was being staged in several units at a time, so the process was involved. The landlord mistakenly failed to give the tenant appropriate notice of the entry.
- His Honour found the Tribunal’s award of $200.00 for emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
- In a recent case in the District Court, Judge David J Clark found in the assessment of general damages: 5 [69] Ultimately any assessment of damages will be based on all the circumstances of the case including (but not intending to make a prescriptive list) the intentions of the landlord; whether there was a lawful purpose which sat behind the conduct; the conduct of the tenant; the effect on the tenant; whether the conduct was ongoing, whether there were any aggravating or mitigating factors from both the landlord or tenant.
- In this case, the landlord intended to inspect the premises. That was a lawful purpose. However, the notice of the inspection was unlawful, and the entry was not with consent. The period of notice given was unreasonably short and much less than the statutory minimum of 48 hours. The tenants did nothing wrong. Mr A very reasonably suggested a different time to that stipulated in the unlawful notice. The effect on the tenants is significant. They feel their peace and privacy was callously violated. Ms B felt humiliated, and Mr A felt belittled and angry that his family had been treated with arrogant disregard. The conduct was a single event. I do not find there are additional aggravating or mitigating factors to consider. 4 Birch v Otautahi Community Housing [2020] NZDC 17667. 5 Sun v Kang [2023] NZDC 24786
- I accept the tenants’ evidence of having suffered emotional harm. They suffered annoyance, humiliation, and distress.
- The facts in case have parallels with Birch. Like that case, the entry “was a significant intrusion [upon the tenants’] rights”. In that case, His Honour awarded the tenant $2,000.00 for an unlawful entry by contractors when the tenant was out. I am bound to apply His Honour’s guidance because the District Court is superior to the Tribunal.
- General damages are compensatory damages and each tenant’s harm must be compensated.
- Considering Birch and Kang and all the circumstances of this case, I consider an award of $1,800.00 for each tenant is apposite to compensate them for her for the harm they suffered. Filing fee
- The tenants have wholly succeeded in their claim. The landlord must reimburse the tenants for the filing fee.