Published tribunal order
Tenancy Tribunal case 5040748 — Exemplary damages at A boarding room at 245 High Street, Dunedin Central,
Decided 25 Jan 2025 · Published 25 Jan 2025 · Application 5040748
- Exemplary damages
- Property damage
Party names are redacted in the official published order.
Order
- The tenant’s name and identifying details must not be published.
- Dunedin City Properties Limited must immediately pay [the tenant] , calculated as shown in the table below: DescriptionTenant Exemplary damages$1,625.00 General damages $1,500.00 Filing fee reimbursement$27.00 Total award$3,152.00
Reasons
- The hearing was conducted on Microsoft Teams.
- The tenant and his counsel, Rebecca McDrury of the Dunedin Community Law Centre attended by video link.
- The landlord’s property manager and company director attended by telephone.
- The tenant claims the landlord terminated the tenancy knowing they did not have grounds and interfered with his reasonable peace, comfort, and privacy in his use of the premises tot the level of harassment. Background
- The tenancy was a boarding house tenancy. The tenant had lived at the premises for about 10 years.
- The landlord is a property management company. It had only recently taken over management of the premises. The landlord’s approach to managing the boarding house differed to the previous landlords and that may have led to some tension.
- On 1 February 2024, the property manager visited the premises. She and the tenant got embroiled in a heated argument over issues at the premises which culminated in her verbally terminating the tenancy. In that exchange, the tenant is belligerent, almost yelling, and is gesturing angrily. The property manager displayed a similar level of physical staunchness and anger.
- Ms McDrury provided a transcript of the latter part of the exchange, which culminated in the termination: PM: The next subject was the bins. And then you’re getting shitty over-- at me because I’m telling you I am not required to make anybody clean them. That is what you are getting aggressive over. If you are going to keep it up [inaudible] serious, we will kick you out of this room. Tenant: I will get out right now. I will [get out?] now. I will leave now. PM: Start packing. Tenant: I will leave now. PM: Start packing. Tenant: I will leave now. PM: Start packing. Tenant: Yeah, I will. I will. PM: [inaudible]. Tenant: Get out. PM: Don’t fucking tell me to get out. Tenant: [You have never?] [inaudible] get those people over here to tell me about what’s been happening. PM: I don’t have to. Tenant: I want you to get them. PM: I don’t have to. Tenant: [inaudible] I am asking you to go get those people. PM: I don’t have to. Tenant: [inaudible] your words, that’s why. PM: I don’t have to. Tenant: I [didn’t?] harass fucking Ta. I’ve never hassled him. PM: I don’t care. I don’t care. Tenant: Then what am I being accused for? PM: Pack your shit and get out.
- The tenant, presumably having cooled down, did not actually move out.
- The landlord had the opportunity to withdraw the verbal termination. However, it cemented in the termination wo days later by changing the tenant’s room’s lock.
- The tenant says he was left homeless. He took two weeks off work to find a new place to live. He felt stressed and let down. He slept in his car for a couple of days and spent some days on a friend’s couch. It was four weeks before he could move into another premises. He almost crashed his work vehicle due to the level of stress he was under. His boss and workmates supported him through it. Legal principles
- Under s 60AA of the Residential Tenancies Act 1986 (RTA), a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 1
- In respect to giving immediate notice, s 66U of the RTA provides: 66U Termination of tenancy by landlord (1) The landlord of a boarding house may terminate a boarding house tenancy— (a) immediately, if the tenant has— 1 See section 60AA and Schedule 1A of the Residential Tenancies Act 1986 (RTA). (i) caused, or threatened to cause, serious damage to the premises; or (ii) endangered, or threatened to endanger, people or property; or (iii) caused, or threatened to cause, serious disruption to other tenants...
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 2
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $3,000.00 may be awarded. 3
- Section 66G of the RTA provides: 66G Quiet enjoyment (1) Every tenant of a boarding house is entitled to the quiet enjoyment of the premises, without interruption by the landlord or another tenant of the boarding house. (2) The landlord must 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.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person": MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- Black’s Law Dictionary 4 defines “harassment” 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.
- The New Oxford Dictionary of English“ 5 defines “harass” as: subject to aggressive pressure or intimidation Discussion
- The termination was verbally communicated. That was solidified by the landlord changing the tenant’s room’s door lock. 2 RTA, s 66G(2). 3 RTA, s 66G(4) and Schedule 1A. 4 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 5 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998).
- The tenant got into a heated argument with the property manager. However, he did not threaten to damage the premises, nor endanger anyone, nor seriously disrupt the other tenants.
- In human affairs, it is natural that people will lose their tempers and volubly argue. It is not pleasant, but if a tenant’s loss of temper does not cross the line of conduct of disruptiveness and endangerment, termination is not an available to the landlord as a response.
- Having carefully considered the video and heard the parties evidence I do not find it proven that the tenant’s conduct crossed the line into the prohibited conduct in s 66U. That being so, there were no lawful grounds to terminate the tenancy in the way it was.
- Not only did the landlord have no ground to terminate the tenancy under s 66U, but the landlord also did not give the tenant a written notice of the termination.
- The termination was plainly bad. The landlord’s actions also amounted to an interference with the tenants quiet enjoyment and reasonable peace. I consider that arbitrarily ending the tenancy in this way amounted to harassment.
- The landlord is an experienced property manager. It is probable the landlord would have been aware that it was not entitled to terminate the tenancy in the way it did and that evicting the tenant amounted to a serious interference with his rights of reasonable peace, comfort, or privacy in the premises. Exemplary damages
- Exemplary damages are designed to punish and to deter. 6 They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 (CA) 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 s 109 of the RTA.
- Section 109 of the RTA confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: 6 See for example, Gao & Jeyasingham v Landlord [2022] NZTT 4329775, 4328263 para 61 ffg. 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 landlord’s intent was spur of the moment retribution arising from conflict. The landlord’s property manager got embroiled in an argument with the tenant. The tenant was equally to blame in the argument. However, the landlord who exercised its ultimate power to terminate the tenancy when it did not have grounds to do so. The landlord could have had a “breather” and withdrawn its invalid verbal notice but doubled down on it by changing the lock.
- The tenant was left homeless for four weeks. It is in the tenant’s interests and in the public interest to make an award of exemplary damages.
- The tenant may not be perfect. On this occasion he demonstrated he was prone to angry outbursts. However, he is a good man and does good work in the community. His work is important, but he only gets a minimum wage. He lives from day-to-day, and his economic survival is fragile. Landlords of boarding houses have significant powers to end tenancies, but they should exercise those powers respectfully, cautiously, and fairly. The landlord did not do that in this case.
- It is just to award exemplary damages
- Having regard to the matters discussed I set exemplary damages at $1,625.00 in this case, which is one-fourth of the maximum amount available for the unlawful termination. This order includes both breaches. General damages
- General damages are compensatory damages. The Tribunal has the power to award compensation under s 77(2)(n) of the RTA, which provides the Tribunal may order: such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any ... provision of this Act
- In Palmer v Housing New Zealand (No 2) 7 , the Tribunal held that when assessing the quantum of general damages, the Tribunal must consider the following factors: 7 Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993. a. The nature of the breach; b. The duration of the breach; and c. The effect of the breach on the party.
- The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing, Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”. 8 In that case, the tenant had returned to her unit to discover contractors had entered her apartment without her permission to do asbestos removal work. The landlord who was carrying out asbestos removal in many apartments in the building had mistakenly failed to give the tenant notice of the entry.
- Judge Neave found the Tribunal’s award of $200.00 of 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 Sun v Kang, Judge David J Clark found in the assessment of general damages in respect to another unlawful entry case: 9 [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 that case His Honour ordered $3,000.00 for the landlord unlawfully entering the premises on two occasions.
- In this case, the tenant’s conduct contributed to the landlord’s actions. The landlord acted impetuously to begin with, and afterwards likely thought the boarding house and its tenants would be better off without this tenant. It could be said the landlord’s desire to have a happier environment was a lawful purpose behind its conduct. The impact on the tenant was serious. He had to take time off work to find a new home. I am satisfied that he suffered significant emotional harm in the form of stress and embarrassment.
- I assess the tenant’s emotional harm at $1,500.00. Filing fee
- The landlord must reimburse the tenant for the filing fee. 10 8 Birch v Otautahi Community Housing [2020] NZDC 17667. 9 Sun v Kang [2023] NZDC 24786 at [69]. Non-publication
- The tenant seeks an order for non-publication of his name and identifying details.
- 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 succeeded in the proceedings. Publication is not otherwise in the public interest or justified by the tenant’s conduct or any other circumstances of the case.
- An order for non-publication is made.