What was the outcome of Tenancy Tribunal case 4990974?

The tribunal order states: The tenancy of Pharis Alexander Miles and Ghada Bazzari at Unit/Flat 1, 662

How much money was awarded in case 4990974?

Agent Costs: $143.75 awarded to landlord; Agent Costs: $228.85 awarded to landlord; Agent Costs: $127.50 awarded to landlord; Compensation: $235.00 awarded to landlord; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 4990974?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4990974?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10992776-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4990974?

The tribunal order states: The tenancy of Pharis Alexander Miles and Ghada Bazzari at Unit/Flat 1, 662

How much money was awarded in case 4990974?

Agent Costs: $143.75 awarded to landlord; Agent Costs: $228.85 awarded to landlord; Agent Costs: $127.50 awarded to landlord; Compensation: $235.00 awarded to landlord; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 4990974?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4990974?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10992776-Tribunal_Order.pdf.

Unit/Flat 1, 662 Beach Road, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4990974 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4990974 — net $835.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages – Exceeding maximum occupants	$100.00	Exemplary damages – Exceeding maximum occupants
Rent compensation	$235.00	Rent compensation
Agent costs	$143.75	Agent costs
Agent costs	$228.85	Agent costs
Agent costs	$127.50	Agent costs
Net award	$835.10
Total payable by Tenant to Landlord	$835.10

Claims and awards in Tenancy Tribunal application 4990974 — net $835.10 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages – Exceeding maximum occupants	$100.00	Exemplary damages – Exceeding maximum occupants
Rent compensation	$235.00	Rent compensation
Agent costs	$143.75	Agent costs
Agent costs	$228.85	Agent costs
Agent costs	$127.50	Agent costs
Net award	$835.10
Total payable by Tenant to Landlord	$835.10

Order

The tenancy of Pharis Alexander Miles and Ghada Bazzari at Unit/Flat 1, 662 Beach Road, Browns Bay, Auckland 0630 is terminated, and possession is granted to Kate Carlisle As The Trustee For The Kate Carlisle Family Trust, at 9:00am on Friday 1 November 2024.
Pharis Alexander Miles and Ghada Bazzari must pay Kate Carlisle As The Trustee For The Kate Carlisle Family Trust $835.10 immediately, calculated as shown in the table below: DescriptionLandlord Exemplary damages – Exceeding maximum occupants $100.00 Rent compensation$235.00 Agent costs$143.75 Agent costs$228.85 Agent costs$127.50 Total payable by Tenant to Landlord$835.10
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenants. This decision follows an order issued on 30 August 2024 determining a number of the claims. Some of the claims were adjourned, to a hearing on 8 October 2024, and then a further video hearing on 21 October 2024. During the course of the hearing, additional claims were filed by the landlord, which are included in this order.

BACKGROUND

The tenancy commenced on 25 May 2024. The landlord is ‘Kate Carlisle Family Trust’, Kate Carlisle is the trustee, which in law makes Ms Carlisle the landlord. There are two co-tenants Ghada Bazzari and Pharis Alexander Miles. The co-tenants are mother and son. The tenancy agreement records the rent as $895 per week, and that the maximum occupants as 2.
The tenancy agreement is dated 15 May by both the landlord and two co- tenants.
At this time, it is relevant to set out a description of the tenancy and wider premises. If the premises were viewed when standing in the carpark, in front is a standalone dwelling which is the tenancy premises. On the right- hand side of that is another separate dwelling, and that is where the landlord lives. On the right-hand side of the landlord’s dwelling is a building site, where the landlord is building another structure. To put that another way, the landlord’s dwelling is between the tenancy and the new building site.
Returning to the carparks, the area of car parking which is in dispute in this case, is wholly in front of the tenant’s dwelling. I accept there is room for around six motor vehicles and I will describe the carparking situation more fully shortly.
During the tenancy things have not gone well between the landlord and tenants, in large measure this relates to disputes around the carparking, which explains the prominence of parking issues in this decision.
The tenants appointed an advocate to represent them in their dealings with the landlord, the advocate is Mr Van Lawrence.
On 5 July 2024 Mr Van Lawrence sent a document to the landlord entitled “Harassment and Trespass Notice” which states: Dear Ms. Carlisle, Harassment and Trespass Notice I am writtng on behalf of my clients, Ghada Bazzari and Pharis Miles, regarding your recent actions and communications. Despite being provided with the necessary authority and documentation, you have continued to harass my clients by ignoring their requests and making unreasonable demands. This letter serves as a formal notice to cease and desist all forms of harassment directed at my clients. Your actions have caused significant distress and disruption, and they are no longer willing to correspond with you directly. Furthermore, please be advised that pursuant to the Trespass Act 1980, you are hereby notified that you may no longer enter the premises at 2/662 Beach Road, Browns Bay, Auckland 0630, which are occupied by Ghada Bazzari and Pharis Miles. You must elect an agent to conduct any necessary inspections, repairs, or access to storage moving forward. It is most regrettable that we find ourselves in this position. Your obtuse insistence on harassing my clients and your disingenuous claim that I have no authority to represent them, despite their explicit request for my representation, have necessitated this action. Please be aware that continued harassment or any attempt to enter the property in violation of this notice will result in legal action, including but not limited to applying for a restraining order under the Harassment Act 1997 and pursuing remedies under the Trespass Act 1980. We trust that you will comply with this notice and refrain from any further actions that could be construed as harassment or trespass. All future communications regarding this matter should be directed to me, Parker Van Lawrence. Thank you for your immediate attention to this serious matter.
The landlord accepted that notice at face value, and appointed an agent for inspections of the premises, and for minor maintenance. The landlord seeks compensation for those additional costs.
Ultimately both parties have filed claims in the Tribunal.
The relationship between the parties continued to deteriorate. Complaints and applications have been made in the criminal jurisdiction.
More recently still, the landlord claims that her car has been damaged by the tenants pouring urine on her car. The landlord seeks a termination of the tenancy because of that.

PROCEDURAL NOTE

In the days prior to the hearing on 30 August, the tenants applied for an adjournment. That was on the basis that Ms Bazzari was in hospital having surgery. Having considered the respective claims, the application for adjournment was declined. I was concerned in relation to the seriousness of some of the claims, including claims of harassment, disputes around trespass, obstruction of buildings works, and the landlord’s right to enter the premises. Those were not matters that could tolerably be left for a later hearing, and on that basis the application for adjournment was declined.
I was also minded that the tenants had appointed a professional advocate to represent them, that is Mr Van Lawrence.
I record for completeness, that I confirmed that Ms Bizzarri could provide any evidence she wished to give in writing, or she was welcome to attend the hearing by telephone. On the day of the hearing (30 August) I was advised that Ms Bazzari was at home recuperating. I again offered that she could attend by telephone, that was declined by her advocate. No written evidence from Ms Bazzari had been filed.
However, during the hearing on 30 August, I determined that four of the claims could reasonably be adjourned, those were the following claims: a. Exemplary damages for exceeding the maximum number of occupants. b. Compensation associated with having an additional tenant for one month. c. Compensation for delayed completion of building works; and d. Compensation for needing to appoint agents
The Tribunal issued a decision on 30 August 2024 in relation to most of the applications, and confirmed that the above matters were adjourned to a later hearing.
A hearing was convened on 8 October 2024 to hear the four adjourned applications, and also a new application filed by the landlord. Ms Bazzari was in attendance at that hearing. Mr Van Lawrence did not attend, the tenants represented themselves.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

LANDLORDS ADJOURNED CLAIMS

As noted, there were four claims from the landlord which were adjourned, and I now determine those as follows: Exemplary damages for overcrowding
The landlord states that the tenancy agreement only allows 2 tenants and that the tenants exceeded that number, so exemplary damages should be ordered. There is no dispute from the tenants that during the tenancy they had another woman in the premises, her name was Maria, so that took the number of occupants to 3. During the hearing, following discussion, it was agreed that this was for a period of 33 days.
The landlord states that she was open to agreeing to additional occupants, but wished to receive a higher level of rent, and she attempted to negotiate that with the tenants, but they did not respond.
The tenant’s position is that the landlord has leased the premises, and is wanting to dictate to the tenants about how they live their lives. It was submitted that it is not necessary or usual for a flatmate to sign on as a tenant. Because of the size of the house it was not reasonable to have only two people living there.
Ms Bazzari states that she did raise with the landlord that Maria was living in the tenancy, and the landlord said that she was agreeable for an increase of rent of $50.00 per week. Ms Bazzari states she accepted that offer. At the hearing I asked the tenants to show me that communication because it would show that there was an approved increase in occupants. The tenants could not find that communication. I confirmed that over the lunch break they could try to find it, but after lunch the tenants confirmed they could not find that confirmation. Analysis
The tenancy agreement records the following condition: A maximum of 2 occupants may live at this rental property
Section 40 sets out the tenant’s responsibilities and confirms at subsection 3 that: (3) Where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy.
Section 40(3A) confirms that a breach of subsection 3 “without reasonable excuse” is an unlawful act, meaning that exemplary damages can be ordered for that breach.
Based on what the tenants stated at the hearing, my impression is that Maria was ordinarily residing in the premises, and I note the tenants confirmed she was paying rent. It is not relevant that the tenants knew Maria personally or what Maria’s social circumstances were, only whether she ordinarily resided at the premises, and I consider she did, even though that was only for a short period.
While the tenants are correct that they do not need the landlord’s permission to have a guest or flatmate, in such circumstances they still need to ensure that they do not exceed the agreed maximum of ordinary residents without the landlord’s consent, which they did not show they had.
I do not consider the tenants had a reasonable excuse for exceeding the maximum occupancy, and therefore they committed an unlawful act, and therefore exemplary damages could be ordered.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has 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.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which in this case is $1,000.00.
I consider that exemplary damages should be ordered taking account of the section 109 factors. I consider the breach was intentional, and that the tenants likely knew there was a restriction in the number of tenants they could have. The effect of the breach was that there would have been greater use on the dwelling than they had contracted with the landlord to receive, and potentially rent avoided. There is an interest for landlords that tenants not exceed the agreed maximum occupancy, and a public interest to a degree in not exceeding maximum numbers. I consider it would be just to make an order.
However, I recognise the breach was for a very short period, and that should be taken into consideration when setting the level of the order. I consider a nominal order of exemplary damages of $100.00 is indicated for this breach. Compensation for extra tenant
The landlord seeks compensation for the tenants having an extra occupant but she is unsure how that could be calculated or what here actual loss is. Again the occupancy was only 33 days, a short time.
Mr Miles advised that he is not in a position to agree if compensation should be provided, or why the flatmate (Maria) left after only one month. Mr Van Lawrence stated that the timeframe was very short so this should be viewed more on the basis of a non-permanent occupant.
Both parties agree Maria lived in the house for 33 days in total. Analysis
On balance, I consider rent compensation would be fair, and I set that at $50.00 per week. I accept that the landlord was prepared to increase the maximum occupancy for a rent increase of around $50.00 per week, that seems fair. That is particularly given that Maria was paying rent to the tenants herself.
I order rent compensation of $235.00. Compensation for delayed building works and costs
The landlord seeks costs on the basis of claimed breaches on the part of the tenants. Those include: a. Additional costs for building works; and b. Costs for appointing an agent for inspections; and c. Costs for appointing a handyman to do work the landlord could have done.
The landlord states that there were issues with the builders being unable to park where they needed at the premises. However at the second hearing, the landlord requested that this claim be withdrawn.
That leaves the claim for the agent and the handyman.
The landlord states that she paid an agent for the inspections the sum of $143.75 and then another agent $228.85. The landlord appointed the agent because she had been refused entry to the premises, and in fact the tenants would not work with her.
In response, the tenants stated that only one agent came to the premises, and they did not get notice for the second agent coming.
The landlord states that the second agent undertook a range of communications with Mr Van Lawrence.
The landlord seeks costs for appointing a handyman to fix a door handle. The landlord states that she was intending to do that work herself, but as she was trespassed, she needed to appoint someone else to do that work. The cost for this work was $127.50.
The tenants state that they wanted a handyman to do the work because they were not comfortable with the landlord doing that work, and they are concerned about the landlord’s behaviour. Analysis
The landlord seeks compensation for the costs she incurred with needing to appoint an agent to undertake the inspections at the premises after receiving the harassment and trespass notice from Mr Van Lawrence on 5 July 2024, and handyman costs.
I can see that the landlord has accepted the validity of that notice at face value. The notice is certainly written in a legalistic way, and made warnings to the landlord that if the notice was breached there would be significant consequences for her.
As discussed at the hearing on 30 August, certainly a tenant could issue a trespass notice to a landlord in relation to the tenancy premises, but the tenant cannot preclude a landlord entering the tenancy for lawful reasons. However the notice is written in such a way, that a reasonable landlord would interpret the notice to be that they could not enter the premises for any reason, even with proper notice. That is further indicated in the fact that the notice states that the landlord needed to appoint an agent for “inspections, repairs, or access to storage moving forward.”
The tenants have no legal authority to preclude the landlord from lawfully entering the premises, which includes accessing the garage which is not an area of exclusive occupancy for the tenants.
The landlord has complied with the notice, and appointed agents to undertake the inspections, which of course the landlord was entitled to do herself by law. Similarly, the landlord appointed a handyman to undertake the maintenance work in the dwelling. I accept the landlord has incurred additional costs that she did not need to incur, as follows: a. Rental inspection agent, $143.75 and 228.85; and b. Handyman costs, $127.50
For the avoidance of doubt, I accept that it is more likely than not that the landlord would have undertaken those tasks, had access to the premises not been prohibited by the tenants. Because the landlord has incurred costs (a loss) arising from a breach of the tenants in refusing lawful entry to the premises, the tenants must compensate the landlord for that loss.

NEW LANDLORD CLAIMS

The landlord seeks the following further orders on a new application which was considered at the hearing on 8 October 2024 and concluded on 21 October 2024 by video hearing: a. Termination of tenancy b. Breach of quiet enjoyment c. Failing to mow lawns d. Conditional clause for continued non-compliance e. Confirmation about communicating with the tenants f. Water charges g. Parking issues h. Walking on building site i. Filing fee Termination of tenancy
The landlord seeks a termination of the tenancy on the grounds that the tenants have damaged her car by pouring urine on the top of the car around the bonnet and windscreen. The tenants dispute that they did this, and oppose the termination application on that basis.
This claim was considered at the hearing on 8 October 2024, where I heard evidence and submissions from both parties. However the hearing was adjourned because there was video evidence that the tenants held that was not available at that hearing. I directed that a copy of the video evidence be send to the landlord and Tribunal, which it was, and that a video hearing be convened on 21 October 2024 to hear any final submissions from the parties on that matter.
I note that while the video recordings were provided, there were some limitations with that evidence. Firstly, because it was from a security camera that only recorded when there was activity detected, it did not show a continuous recording of the car parks, and we rely on the tenants providing all relevant recordings, and as will be discussed below, the landlord submits the tenants have withheld some recordings and edited others. Landlords position
The landlord states that urine was thrown on her car on 21 or 22 September, she believes it was thrown on top of the car, landing on the bonnet. The car was parked under the balcony of the tenants. The landlord states that her car did not have signs of urine contamination when she parked it, it was noticed when she drove away from the carpark on 22 September just before midday.
The landlord states that when she went to the car on 22 September, she noticed that Ms Bazzari was pouring water on her son’s car from a watering can, which the landlord considers in retrospect to be Ms Bazzari washing urine splashes from her son’s car.
The landlord produced photographs of her car, explaining the areas where the substance she understood to be urine, was visible. The landlord states that the car still smells of urine, and the paintwork has been damaged from this. The landlord states she has made a complaint to the police in relation to this event.
The landlord states that she has been advised that parts of the air conditioning unit need replacement. An email from the Air Conditioning company to the landlords insurer, AMI, is dated 23 September 2024, and states: ...someone urinate on the windscreen and it has run down under the windscreen covers. Needs a little bit of disassembly to clean up as the smell is still coming in through the fresh air intake. ... In one photo you can see that the bonnet is damaged – that is unrelated – the photo is trying to show the urine stains.
A claim was made to the insurance company for this damage and the insurer has accepted it.
In response to the tenant’s submissions, the landlord disputes that she poured urine on her car. The landlord said that the CCTV of her on 9:42pm on 21 September 2024 was of her bidding farewell to a guest at the premises.
At the hearing on 21 October 2024, the landlord made the following additional submissions, particularly in light of the video evidence sent by the tenants.
When she found the urine on her car (22 September 2024), it was a hot day. Ms Bazzari was outside ‘watering’ her son’s car with a watering can, and when she saw the landlord, the tenant hurried back inside. The landlord states that she smelt urine outside the car when she got to the carpark, but then not inside the car initially. The landlord states that after she drove away, she saw Ms Bazzari come back outside and continue to pour water on her son’s car. When the landlord was driving to Henderson, she states that she then could smell urine inside the vehicle.
The landlord considers that the tenants have edited the videos, and some portions are missing given the time recordings. The landlord notes that the format that the recordings are named differently between those from 21 and 22 September. Further the landlord states that the resolution has changed between the video recordings, so she considers they have been changed.
The landlord considers that there are marks on the concrete that would be consistent with water, with the video showing the marks disappear (evaporate) quickly.
The landlord states that the marks are not oil stains, because recent photographs provided to the Tribunal do not show oil marks on the car park that was used by Mr Miles.
In conclusion, the landlord maintains her claim, she disputes that she has harassed the tenants. The landlord states that at the hearing Mr Miles claimed the marks on the concrete was from an oil leak under the car, then at the video hearing he said it was moisture dripping from the chains. This was a hot day, so it could not be caused by condensation dripping from the chain. The landlord states that the images show water marks dripping to the tenant’s door, which dried quickly, the landlord considers those marks are from the watering can being moved inside the tenancy with Ms Bazarri. Tenants position
The tenants dispute this claim, and they say the CCTV does not support that they poured urine on the landlord’s car.
The tenant’s states that their CCTV recordings do not support that Ms Bazzari was washing the car, noting that stills of the CCTV from 22 September 2024, when the landlord was driving away, did not show Ms Bazzari or water on the ground.
The tenants say that the landlord has damaged their property, including scratching their car and damaging other property. The tenants consider the landlord would snoop around their vehicle.
At the hearing on 21 October 2024 the tenants added the following:
The videos were compressed in order to send them, which may explain why the quality is different.
Mr Miles submits that the water could have dripped on the car from chains hanging from the deck above the parked cars.
The tenants dispute that it was them that poured urine on the landlord’s car, the tenants consider this has been fabricated by the landlord in response to them bringing other complaints against the landlord for harassment. Analysis
The landlord seeks a termination of the tenancy, on the ground that the tenants have damaged her car, by pouring urine on the top of the vehicle.
There are limited provisions in the RTA under which the Tribunal could order termination of the tenancy, but in this case the application could fall within section 56. Section 56 is a general termination provision and holds: 56 Termination for non-payment of rent and other breaches (1) On an application made to it under this section by the landlord or the tenant, the Tribunal may make an order terminating the tenancy if the Tribunal is satisfied that— (a) the other party has committed a breach of any of the provisions of the tenancy agreement (including provisions relating to the payment of rent) or of this Act; and (b) in the case of a breach capable of remedy,— (i) the applicant gave to the other party a notice specifying the nature of the breach complained of and requiring the other party to remedy the breach within a reasonable period, being not less than 14 days commencing with the day on which the notice was given; and (ii) the other party failed to remedy the default within the required period; and (c)that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
In considering this application, the Tribunal must consider the following questions: a. Does the evidence support that the tenants poured urine on the landlord’s car, if so b. Is that a breach of the tenancy agreement or RTA; if so c. Was the breach capable or remedy; and d. Would the breach be or such a nature or such an extent that it would be inequitable to refuse to order termination of the tenancy Does the evidence support that the tenants poured urine on the landlord’s car
The focus of the parties at the hearing was whether the evidence supported that the tenants poured urine on the landlord’s car.
I note again the onus sits with the landlord to establish her claim, so it is the landlord who must prove that the tenant did contaminate her car as she says. For the following reasons, I find the landlord has established this.
I start by accepting that the evidence does support that urine was poured on the landlord’s car. There are two particular threads of evidence supporting that, there is the landlord’s evidence that a substance like urine was on her car based on the appearance and smell, and that is supported by the evidence from the independent air conditioning technician who also considered the substance to be urine. Again the evidence does not need show that there was urine on the car to a very high standard, a likelihood of fractionally more than 50% is all that is needed.
Based on my consideration of the evidence of the parties, and the video evidence, I consider it is more likely than not that the allegation from the landlord was correct, that is that the landlord’s car was contaminated by urine from the tenants. I reach that view for the following reasons.
Firstly, I accept that the landlord’s car was likely to have been contaminated between the car being parked in its position on 21 September 2024, and when the landlord went to move the car the following day around 11:39am. The tenant’s camera appears to be reasonably sensitive, and it would be most likely that if some third party had come to the car park and poured urine on the car, it would have been captured by the camera, but there is no suggestion of this.
I accept the landlord’s claim that the marks under Mr Mile’s car are very likely to be water, which is entirely consistent with what the landlord states she had seen around 11:39am on 22 September, that was Ms Bazzari pouring water on her son’s car. Ms Bazzari has disputed that she did that, but no other credible explanation has been presented for why that water would be seen under the car.
I find this was very likely to be water, given the pattern of the water under car, the drip marks which do lead to the tenant’s door, and importantly the fact that later videos and still images, taken in October 2024, so no show any marks on the concrete. That is relevant because if this were oil, then that would have been obvious in October 2024.
It is not credible that given the time of the day, that any moisture seen would have come from condensation dripping from the chain on the tenant’s deck.
A focus of the landlord’s case is that the video images provided by the tenants have been edited in some way or are incomplete. Based on my assessment of the evidence, it is difficult to escape that conclusion for these reasons: a. As noted by the landlord, the individual video files have different labelling conventions between 21 and 22 September. For example one of the files from 21 September is named “RecS02_20240921_172036_172055_551E902_20B176”, and the other files that day have a similar length name. Whereas the files from 22 September have much shorter names, such as “RecM02_20240922_1140”. No compelling explanation has been presented for the different naming. b. The video files are all reasonably modest in size, no file is over 1 mb. Therefore I cannot accept that the changes in the appearance of the individual recording will be due to some files being compressed, where others were not. c. I agree with the landlord that the file “RecM02_20240922_113918” being a recording from 22 September, appears to be shorter than its name suggests, or to put that another way, some time is missing from the start of the recording based on the file name, which suggests the recording starts at 11:39 and 18 seconds. d. That file (“RecM02_20240922_113918”) is a critical file, given it is the first recording from 22 September. I agree with the landlord that there is no motion shown on the recording to account for why the camera would have started when it did, it would be consistent with the earlier movement which triggered the recording being edited out. e. None of the video files show the landlord getting into her car. That is surprising given the apparent sensitivity of the camera in picking up other movement, particularly on 21 September where a number of recordings have captured movement around the general area, including animals.
I consider the most likely situation is that the urine contamination to the landlord’s car, was likely from the tenants. Is that a breach of the tenancy agreement or RTA
I consider this is a breach, but not of the strict obligations from the tenants to the landlord, but the obligations the tenants have to their neighbour. Section 40 of the RTA sets out the tenant’s responsibilities, and that includes at subsection 2(c) that the tenants “shall not”: (c) cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
The landlord is also the neighbour of the tenants, so this obligation extends to her in that capacity. I consider that pouring urine on the neighbour’s car, in circumstances of the very significant friction between the parties, was likely to have been done with the intention of causing distress or inconvenience, and therefore has interfered with her reasonable peace and comfort.
I accept the landlord’s evidence that she has been unable to live in the premises because of the effect this episode has had on her.
The tenants have therefore breached their obligation under the RTA. Was the breach capable or remedy; and
This is not a breach that can be remedied. When the urine was poured on the car, the breach occurred, and the breach could not be rewound. But if I were wrong with that, I cannot see that the tenants have made any effort to remedy the situation for the landlord. Would the breach be of such a nature or such an extent that it would be inequitable to refuse to order the termination of the tenancy
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229 (Judge Rowe), the Court needed to consider the extent of section 56(1)(c), which requires consideration of whether the breach: ...is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.
The Court set out a range of factors that would be relevant in that case, being:
The history of the tenancy.
Whether there had been a persistent failure after repeated warnings.
Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future.
Whether the breach was inadvertent or deliberately committed.
The conduct of the landlord.
The gravity of the breach.
Whether termination is a proportionate response to the breach.
Applying those factors in the case before me, I conclude:
There is a very troubling history at this tenancy, and the matters are escalating. Both parties have raised issues now within the criminal jurisdiction, and each party considers the other to be the instigator of severe harassment and property damage. The relationship is irreparable.
The next consideration is whether there had been a persistent failure after repeated warnings. To a degree this consideration would be met, in that the relationship has continued to deteriorate, even during the time there has been intervention of the Tribunal. I have worked unsuccessfully to get the parties back on track with their day-to-day relationship.
I am not in a position to be satisfied that there would be no future breaches if the tenancy continued.
The breach was undoubtedly deliberate.
I think it very likely that there has been some things that the landlord has done which has contributed to the relationship breakdown. As an example, there has been a significant dispute over parking. It seems likely to me that the landlord would at times elect to park her car in a way that blocked or made life difficult for the tenants, and that was unnecessary. I have taken into consideration whether any contribution from the landlord would argue against a termination, but while it is relevant, I do not find it sufficient on its own to decline termination.
The breach was of moderate to significant gravity. It has caused damage to the landlord’s car, a financial loss to the landlord and her insurer, inconvenience and I accept it has seriously impacted the landlord in her ability to live in her unit as a neighbour.
Taking all factors into account, I do not consider that ordering termination in this case is disproportionate to the breach.
The application for termination is granted, the Tribunal orders termination of the tenancy. Breach of quiet enjoyment 40(2)(c)
The landlord states that after the first hearing, she slept in her property for two nights until the urine issue above, and then not again since. The landlord states that she has lost quiet enjoyment of her property because she no longer feels safe parking her car at the residence.
The tenants say that the landlord was not parking her car at the units prior to the claimed vandalism incident, and the one time she decided to park in the park the vandalism occurred. The tenants consider this claim has been staged with an intention to get the tenants out of the premises. Analysis
Section 40 of the RTA sets out the tenant’s responsibilities, and that includes that the tenant shall not: cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
Section 40 confirms that breaching the above requirement in “in circumstances that amount to harassment of a tenant or a neighbour of the tenant” is defined an unlawful act, and therefore exemplary damages could be ordered.
This case turns on the above finding on whether the evidence supports that the tenants did in fact pour urine on the landlord’s car, and I find they did, that is an unlawful act.
While that would be an unlawful act, I have decided in the overall circumstances of the case, that exemplary damages should not be ordered. I have ordered a termination of the tenancy, which I accept will have a significant impact on the tenants. Furthermore, as I have also explained, I consider there have been actions on the part of the landlord that likely contributed to the overall friction between the parties, and in that case, it would not be just to order exemplary damages. This claim is dismissed. 40(1)(c) for failing to mow lawns
The landlord seeks orders around mowing and weeding. The tenants agree this work needs doing. The parties agree that the tenants will sort this out on the afternoon of the hearing (8 October). The landlord was happy with that, so this claim has been resolved. Conditional clause for continued non-compliance
The landlord states that she had been advised that if there was ongoing non-compliance, that she could ask for a ‘conditional clause’ in the order should the tenants fail to comply.
As I explained to the landlord at the hearing, as it relates to prior orders around the parking, I would not be prepared to change that order, because the application was for a declaration. The landlord’s remedy here is to issue the tenants a 14 day notice of breach, but that is not a matter I can take further.
Also this application would now be moot given I have ordered termination to occur. Confirmation about communicating with the tenants
The landlord states that the tenants will not communicate with her.
The tenants confirmed they will not communicate with the landlord. The tenants say that the landlord is harassing them, and they have been advised not to communicate with her.
Following discussion at the hearing, both parties agree that they will communicate by email via Mr Miles. Ms Carlisle confirmed that she has Mr Miles’s email address. The tenant’s only caveat is that they don’t want to have offensive content in that email, which of course is very fair. Water charges
The landlord states that the current water charges for the premises are $27.40 and $27.17. The tenants have not received these accounts. They were only raised at the hearing on 8 October. The tenants do not dispute the water, I am sure they will pay it. I will not make any further orders in relation to these charges. Parking issues
At the previous hearing, I made the following declaration: The Tribunal declares that that the tenants have exclusive use of the two car parks on the left side of the tenant’s front door, for the duration of the building works. After the building works, the tenants have a right to use two car parks. During the building works, the tenants must not use or express any rights over car parks that are not allocated to them.
The landlord provided a number of photographs. One of those shows a tenant’s car in the landlord’s car park. The tenant says they needed to park there because there was a builder for the landlord parking in their carpark, that was a reasonable explanation.
The landlord provided photographs showing other vehicles in her parks. The tenants say these are not theirs or someone they know. The landlord has not proven otherwise, and I cannot take this any further.
The landlord claims the tenants have a shed and planter box on her carpark. The landlord states that the tenants are not complying with the earlier Tribunal order.
In relation to the shed, the parties discussed this, and agreed that the tenants will move the shed in front of the garage or inside the garage, and within one week of the hearing on 8 October. The tenants will move the planter box in front of their car park, also within one week. These issues have been resolved. Walking on the building site
The landlord seeks an order about the tenants going onto her building site. As I advised at the hearing, because this is not part of the tenancy premises, I cannot make an order in relation to it.

TENANTS NEW CLAIM

The tenants seek an order in relation to their privacy being respected, and their goods being used or damaged. The tenants referred to the builder using the tenant’s hose.
In response the landlord states that her builder took the wrong hose, certainly she had confirmed the builder could use her hose, having expected him to take the hose at the back of the premises, not the tenant’s hose. Analysis
We discussed this claim at length at the hearing. The best I could do, is to warn the parties of the potential consequence if the trajectory of conflict at these premises continuing. I cannot see that I can make any further order here.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants have applied for name suppression, but I am not persuaded that the tenants have been at least substantially successful, so tenant name suppression is declined.

Tenancy Tribunal case 4990974 — Exemplary damages at Unit/Flat 1, 662 Beach Road, Browns Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4990974 — Exemplary damages at Unit/Flat 1, 662 Beach Road, Browns Bay, Auckland 0630

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

PROCEDURAL NOTE

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS ADJOURNED CLAIMS

NEW LANDLORD CLAIMS

TENANTS NEW CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

PROCEDURAL NOTE

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS ADJOURNED CLAIMS

NEW LANDLORD CLAIMS

TENANTS NEW CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions