What was Tenancy Tribunal case 4979611 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 4979611?

Compensation: breaches of quiet enjo…: $1,500.00 awarded to tenant; Compensation: initial failure to com…: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4979611?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4979611?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11089722-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4979611 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 4979611?

Compensation: breaches of quiet enjo…: $1,500.00 awarded to tenant; Compensation: initial failure to com…: $1,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4979611?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4979611?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11089722-Tribunal_Order_Redacted.pdf.

5 North Terrace, Darfield, Darfield 7510 Tenancy Tribunal Case 4979611 — Healthy homes

Claims and awards in Tenancy Tribunal application 4979611 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breaches of quiet enjoyment	$1,500.00	breaches of quiet enjoyment
Compensation: initial failure to comply with the Healthy Homes Standards	$1,000.00	initial failure to comply with the Healthy Homes Standards
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,527.00
Total payable by Landlord to Tenant	$2,527.00

Claims and awards in Tenancy Tribunal application 4979611 — net $2,527.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breaches of quiet enjoyment	$1,500.00	breaches of quiet enjoyment
Compensation: initial failure to comply with the Healthy Homes Standards	$1,000.00	initial failure to comply with the Healthy Homes Standards
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,527.00
Total payable by Landlord to Tenant	$2,527.00

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
Samuel Joseph McClintock must pay [The tenant/s] $2,527.00 immediately, calculated as shown in table below:
The application for exemplary damages is dismissed.
The application for a restraining order is dismissed

Reasons

Both parties attended the hearing I held on 11 November 2024. The landlord was represented by counsel Mr Heenan.
The tenant has applied for compensation and exemplary damages for various alleged breaches by the landlord of his statutory responsibilities. The tenant also requests that the Tribunal make a restraining order. Background
The tenancy started on 30 May 2022. It was initially a fixed term tenancy that became a periodic tenancy after the fixed term ended. The tenant remains in the tenancy.
The landlord previously lived at the tenancy premises. This is the first time he has been a landlord.
The landlord keeps separate from the tenancy a garage on the property which he uses for his own purposes. The power to the garage is not separately metered; it runs from the house and is included in the tenant’s power bill. The parties reached an agreement that the landlord would pay the tenant $20.00 per month for power. The landlord owes the tenant the current instalment.
The tenant became increasingly concerned about what he considered were breaches of his quiet enjoyment of his tenancy. The tenant was particularly concerned when the landlord parked his trailer outside the house, near the bedroom and bathroom though he had other concerns as well.
After the tenant made his application, I held a directions conference with the parties. I make timetabling directions for them to provide details of their claims. Each complied with the directions.
I also allowed the parties legal representation since the monetary threshold for representation was met. The landlord elected to be represented, the tenant not.
Both parties provided written submissions. The tenant also provided documentary evidence as well as photos and video evidence. I have considered all the material placed before the Tribunal even if I do not specifically refer to it. Agreement to terminate the tenancy
Counsel for the landlord emailed the registry at the end of last week seeking advice about what might happen if the landlord terminated the tenancy because a family member wanted to move into the premises. Though not part of the application, I raised that issue with the parties. I allowed the tenant time to consider the termination on grounds I suggested might benefit both parties.
The tenant confirmed in writing that he consented to the tenancy ending on 2 February 2025, with him having the option to vacate at any time before then without notice.
I have therefore made a consent order for the tenancy to end. The tenant must still advise the landlord in writing if he decides to vacate the tenancy before 2 February 2025, even though he is not required to give the statutory period of notice. Issues
The tenant has raised the following issues: •The landlord has entered the property on multiple occasions without notice disturbing his right to quiet enjoyment and privacy. That has exacerbated his health issues and especially his PTSD. •The breaches of quiet enjoyment amount to harassment and intimidation. •The landlord failed to ensure that the premises were Healthy Homes Standards (HHS) compliant resulting in unsafe living conditions. •The arrangement concerning the power was financial abuse, a misuse of utilities. •The landlord failed to communicate and did not respond to his request for property modifications and maintenance.
The tenant seeks compensation and, for the breaches that amount to unlawful acts, exemplary damages. As well, he seeks a restraining order. Relevant legal considerations
Section 38 of the Residential Tenancies Act 1986 (RTA) provides in part: Quiet enjoyment (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. (3) Contravention of subsection (2) in circumstances that amount to harassment of the tenant is hereby declared to be an unlawful act.
Section 109A RTA provides: 109A Tribunal may restrain further commissions of unlawful acts (1) If the Tribunal makes an order against a person under section 109 on the ground that the person has committed an unlawful act, the Tribunal may, if satisfied that it is in the public interest to do so, make an order restraining the person from committing a further act of the same kind. (2) The Tribunal may make an order under subsection (1) on its own initiative or on the application of the applicant who applied for the order, under section 109, against the person sought to be restrained. (3) The Tribunal must specify the term of the order, which may not exceed 6 years. (4) Every person commits an offence who, being subject to an order under this section, intentionally contravenes the order. (5) A person who commits an offence against subsection (4) is liable on conviction to a fine not exceeding $3,600.
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine.
Exemplary damages awarded at the Tribunal’s discretion when one party has proved that the other party has, with intent, 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.
In Birch 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. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Analysis The first 2 issues – did the landlord breach the tenant’s quiet enjoyment and privacy, and if so, did the breaches amount to harassment?
The tenant gave evidence about his health issues. I need not record the details here. He said he wanted peace and quiet and did not want to be interrupted by the landlord. He said his lifestyle was as though he worked nightshift; he slept during the day and was awake and active at night.
The tenant described how the landlord, over a few days, knocked at his door, though he did not answer. When he did finally answer the door, the landlord explained that he was concerned and intended calling the police to conduct a welfare check if he did not get a response. The tenant found that intrusive and inappropriate.
The tenant also referred to the landlord accessing the property to undertake maintenance, without notification, and to access the garage. He posed the question, when does access by a landlord cross the line between what is reasonable and what is not?
The landlord said he was genuinely concerned about the tenant and that is why he kept knocking at the door over a 3–4-day period. He wanted to check that he was alright. He said he never went inside the premises and his access was either to undertake maintenance or to use the garage, not part of the tenancy.
The landlord explained that when the tenant raised an issue about him parking his trailer, he removed it. And he has since limited the times he accesses the garage.
The landlord accepted that there were instances when he ‘could have done better’ in terms of communicating with the tenant about maintenance he carried out especially cleaning the deck, washing the windows, and roof repairs. He said he had held off repairing a boundary fence because he was aware of the tenant’s concerns abut him accessing the premises.
Having heard from both parties, I have concluded that the landlord was genuinely concerned about the tenant, and he believed that the maintenance work he carried out was justified and good for the tenant as well.
However, the tenant had health issues that meant he did not want interruptions, and he certainly saw no reason for any welfare check.
So, there are different perspectives, each justified and each understandable.
I do not find that the landlord harassed the tenant. Harassment is a serious and/or sustained breach of quiet enjoyment that requires intent to be established before the Tribunal can award exemplary damages. It requires an objective assessment by the Tribunal, not a subjective assessment through the lens of a susceptible party.
The Tribunal acknowledges the tenant’s reactions, his worry and anxiety, driven in part by his mental health challenges. But it must consider the facts and the application of the law from the objective perspective I have mentioned.
Here, the landlord’s behaviour was annoying at times, and occasionally intrusive, but it was not meant to cause the tenant harm or worry or upset.
I find that the landlord breached the tenant’s right to quiet enjoyment especially around maintenance issues resulting in visits that should have been more thoughtfully notified. This affected the tenant’s enjoyment of the tenancy over time, and it was compounded by the other aggravations the tenant mentioned, including his worry about power use. For this breach I award the tenant compensation of $1,500.00.

Did the landlord fail to ensure the premises complied with the HHS?

The landlord said he thought from his own assessment that the premises were HHS compliant. When the tenant raised this issue, he had the premises professionally assessed. They were found not to be fully compliant. The landlord quickly rectified that. The premises now comply.
A failure to comply with the HHS is an unlawful act for which the Tribunal can award exemplary damages up to $7,200.00.
I have already explained that exemplary damages are like a fine in the criminal jurisdiction. But in the same way that an offence that provides for a fine of $5,000.00 might result in a much lower fine in certain circumstances, so too with exemplary damages. The highest awards of exemplary damages are reserved for the most serious cases.
Before the Tribunal could award exemplary damages, it would have to find that the landlord ‘turned his mind to the unlawful act and deliberately set about to commit it’, in other words that he acted intentionally.
Here, I find that the landlord was negligent by not ensuring compliance with the HHS and just relying on his own assessment. This was the landlord’s first experience of being a landlord. While that does not excuse him from compliance with his statutory responsibilities, it helps explain what happened.
Negligence is not sufficient for the Tribunal to award exemplary damages. Relevant too is the fact that once the landlord was made aware that the premises did not comply, he quickly rectified that.
That said, the tenant suffered a loss of enjoyment of the tenancy because the premises were not HHS compliant. The insulation was not sufficient and there were gaps around windows and doors which meant the draught standard was not met. There was also an issue with the back door. Together this resulted in the house being cold and draughty.
For the landlord’s failure to ensure compliance with the HHS (since rectified) I award the tenant compensation of $1,000.00. Was the agreement between the parties about power costs a breach of the

RTA?

The agreement between the parties about payment for the landlord’s power use in the garage was not a breach of the RTA. There was an episode of high power use on a particular day. Otherwise, the landlord said his power use was very limited – lighting and the occasionally use of power tools. He said he told the tenant to tun off the power to the garage to address his concerns.
The tenant has not proved any loss, beyond his anxiety that the power use was not separately metered. He accepted that he had been paid according to the agreement which he had with the landlord (except for 1 payment the landlord acknowledged he still owed which he should now pay). To use the tenant’s words, he ‘is not stressing about it’.
I find no proven basis to award compensation for the landlord’s (minimal) power use for which the parties have a payment arrangement. This claim is dismissed. What about the landlord’s failure to communicate and failure to agree to modifications and maintenance?
The landlord accepted that there were deficiencies in his communications with the tenant. This is a case where the relationship between the parties has broken down largely because the tenant does not feel that his privacy and quiet enjoyment are respected. The appropriate remedy when that occurs is for the tenancy to end. That is what the parties have agreed, on terms that provide them each with a benefit.
The anxiety the tenant experienced from his perception of inadequate communication is part and parcel of his loss of enjoyment of the tenancy, not a separate compensable breach. Nor is the landlord’s failure to agree to other maintenance issues. I make no further award of compensation under this head of claim. Restraining order
For the Tribunal to make a restraining order, it must first make an order awarding exemplary damages. Because no order for exemplary damages is made, the Tribunal cannot therefore make a restraining order.
Even if it had awarded exemplary damages, the Tribunal would not have made a restraining order. The breaches at issue here were not sufficiently serious for the Tribunal to make an order in the public interest.
The application for a restraining order is dismissed. Result
The tenancy is terminated by consent. Possession will pass to the landlord on 2 February 2025, or earlier by the tenant’s choice.
The landlord will pay the tenant $2,527.00 as compensation for breaches of his quiet enjoyment and privacy and as compensation for the period when the premises were not HHS compliant. The award includes reimbursement of the tenant’s filing fee.
The tenant’s application for exemplary damages is dismissed.
The tenant’s application for a restraining order is dismissed. Name suppression
The landlord did not seek a name suppression order. The tenant sought, and is entitled to, name suppression on the successful application – see section 95A RTA.

Tenancy Tribunal case 4979611 — Healthy homes at 5 North Terrace, Darfield, Darfield 7510

At a glance

Tenancy Tribunal case 4979611 — Healthy homes at 5 North Terrace, Darfield, Darfield 7510

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to ensure the premises complied with the HHS?

RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to ensure the premises complied with the HHS?

RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions