Published tribunal order
Tenancy Tribunal case 4988550 — Healthy homes at 534 Coatesville-Riverhead Highway, Coatesville, RD 3,
Decided 28 Oct 2024 · Published 28 Oct 2024 · Application 4988550
- Healthy homes
- Exemplary damages
- Boarding House
Party names are redacted in the official published order.
Order
- The tenant’s name and identifying details must not be published.
- Selena Yang as agent for Junyi Dai must pay [the tenant] $858.25 immediately. Compensation for loss of amenity $831.25 Filing fee reimbursement$27.00 Total award$858.25
Reasons
- Both parties attended the hearing.
- The tenant’s mother attended as support person.
- The tenant claims the landlord failed to lodge the bond, unlawfully entered the premises, and interfered with his reasonable peace, comfort, and privacy.
- In his application, the tenant claims: I called the bonds centre 3 days ago to find out if my bond had been lodged yet. It had not. I then emailed Selena Yang (Property manager) who I have not received a response from. This is not the first time as I have texted her in regards to unannounced strangers on the property and inside the house. She has only ever informed me once that someone was coming over but otherwise she does not respond. I then called Terry today (landlords nephew) to ask if my bond could be lodged as it hadn't. All he said was "Don't worry, you'll get it back as long as there's no damage to the room." Background
- The premises’ owner employs Ms Yang. The premises are part of a sprawling, mansion-like dwelling on substantial grounds.
- At the beginning of the tenancy, the tenant was unaware that the owner had retained a separate part of the house for his personal use. The owner, however, spends a lot of time overseas, and only used the separate part of the house occasionally during the tenancy.
- Ms Yang managed the tenant’s tenancy, which began on 25 April 2024 and ended on 27 September 2024.
- The tenant is 19 years of age. This tenancy was his first experience of living away from home.
- The tenancy agreement Ms Yang used for the tenancy was deficient. It failed to include such basic mandatory requirements such as a healthy homes statement, and insulation statement, or an insurance statement. The agreement also contains a number of misleading terms such as providing that the landlord could terminate the tenancy by “a month notice”. 1
- The landlord rented the premises out bedroom-by-bedroom with each tenant sharing the entire premises. The tenant was one of five tenants sharing the premises. The tenants did not have a say in whom the landlord rented each bedroom out to. Because there were only five tenants, the premises was not a boarding house under Part 2A of the Residential Tenancies Act 1986 (RTA).
- Ms Yang intended to set up an office in a room the tenants were using as their main sitting room. The tenancy agreement does not mention that prospect. However, says she mentioned something of it to the tenant at the beginning of the tenancy. The tenant says he knew that Ms Yang had said something of the sort she mentioned but she had not provided any detail. He presumed he would be given more details at a later time. 1 These breach s 13A of the Residential Tenancies Act. However, the tenant did not make any claim in this regard.
- The tenant says that Ms Yang did not communicate her intentions for the office clearly to the any of the other tenants either. The tenant says they he and the other tenants were all upset when they arrived home on one occasion to find that the landlord had put office items in their sitting room and/or the garage while they were out. The tenant explains: The landlords and company have placed class cabinets with equipment and their possessions in the laundry and garage, including boxes, random old chairs, and boxing equipment. Along with that there is office supplies that were added into the living space while my flatmates and I were at work. I am aware that one of my flatmates moved said office supplies into a storage space somewhere else on the property. He then had an argument with (I believe) Selena Yang (the property manager) when she found out he had moved the office equipment. The office supplies were once more dumped onto the table in the living space. My flatmate then moved all the office supplies to organize them and put them into the dresser in photos below and bigger items onto the cabinet.
- On another occasion, to the tenant’s surprise, the landlord entered the premises to put items in the sitting room while the tenant was still in bed.
- The tenants says he was also shocked to look out the window one day to find people using the grounds for a get-together alfresco meal. On that occasion he emailed Ms Yang:
- It turned out the people were the owner and his family. However, the tenant had not been told that the owner had kept a part of the house to stay in himself when he was not overseas and did not expect to see anyone other than his fellow tenants using the grounds.
- The tenant says that as a result of the unexpected intrusions, he felt uncomfortable in the premises. He was uncertain when the landlord would come into the house uninvited or use the grounds next.
Did the landlord breach their bond obligations?
- The tenant paid the landlord a $460.00 bond.
- The landlord did not lodge the bond with the Bond Centre.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. 2
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. 3 Section 109(3) of the RTA provides that 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.
- A failure to lodge the bond tends to threaten the integrity of the system for bond collection. Tenants and the public are entitled to trust the system will protect client funds. The funds are needed to help fund tenancy services. The bond is the tenant’s money; it is not the landlord’s money.
- Ms Yang says the failure to lodge the bond was a mistake due to the owner being overseas at the time.
- At the hearing, I indicated my intention to order the landlord to pay $500.00 for failing to lodge the bond. However, after the hearing I reviewed the file and saw the tenant had not formally applies for exemplary damages as required by s 109(1) and (3) of the RTA. That being so exemplary damages are not an available remedy. Formal application is required so the landlord is put on notice of the need to defend such a claim. That was not the case here.
- The landlord has repaid the bond, so the tenant is not out of pocket.
- Because the tenant did not apply for exemplary damages in his application from prior to hearing and the bond has been returned to him, no order is made for the landlord failing to lodge the bond.
Did the landlord breach their entry or reasonable peace duties?
- 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. 4
- Further, the landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 5
- Breaching these obligations can be unlawful acts for which exemplary damages may awarded. 6 However, the tenant has not formally applied for exemplary damages, so exemplary damages are not available as a remedy. 2 Residential Tenancies Act 1986 (RTA), s 19(1). 3 RTA, s 19(2) and Schedule 1A. 4 RTA, s 48(1) and (2). 5 RTA, s 38(2). Discussion
- The tenant’s problems with the tenancy go back to its inception.
- The tenancy agreement is deficient and lacks detail. If it had contained more detail, perhaps the tenant would not have been so shocked by the landlord’s actions.
- While the tenancy agreement purports to be a residential tenancy agreement, Ms Yang seems to have been under the misapprehension that the Residential Tenancies Act 1986 (RTA) did not apply to the tenancies of the premises. However, the RTA clearly does apply. Moreover, s 11 of the RTA trumps any inconsistent terms contained in the deficient tenancy agreement: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect...
- Ms Yang apparently did not appreciate that landlords must give tenants written notice of their intention to enter the premises well in advance of doing. Nor did she appreciate that entering the premises without lawful notice might breach the tenants’ right to reasonable peace.
- Ms Yang says she told the tenants she would be using the room in issue as an office. The room was just an unused bedroom, not a living room. She could enter the room by an external door without entering other parts of the tenants’ premises. Presumably, once she had decided to begin using the room as an office, she would have used the external door and would not have had to enter it via the tenant’s remaining premises.
- Nonetheless, the landlord did not clearly detail their plans for the office or explain that the landlord would be living in an adjacent premises and using the grounds. The overall result was to create an air of uncertainty and I find resulted a significant breach of the tenant’s reasonable peace comfort and privacy. Conclusion
- I find it proven that the landlord unlawfully entered the premises and interfered with the tenant’s reasonable peace, comfort, and privacy. 6 RTA, Schedule 1A. Compensation
- It is appropriate to order compensation for loss of amenity.
- The tenant felt a lack of autonomy in the premises. His reasonable peace, comfort, and privacy were significantly impaired by the landlord’s apparent belief that they could enter onto the premises to place items within it without giving proper notice as required by the RTA. The tenant therefore felt insecure about when the landlord or the landlord’s agents would next appear.
- I calculate the tenant’s loss of amenity at 25 percent of the weekly rent. I find the tenant has proven the loss of amenity from 25 June 2024 when the landlord first entered the premises without giving the tenant proper notice until the end of the tenancy.
- The total amount ordered for compensation is $831.25. Filing fee
- The landlord must reimburse the tenant for the filing fee. Non-publication
- The tenant requests non-publication. 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.
- The tenant has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
- Therefore, the Tribunal orders non-publication of the tenant’s name and identifying details.