What was Tenancy Tribunal case 5044910 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 5044910?

Property Damage: $450.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5044910?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5044910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11111554-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5044910 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 5044910?

Property Damage: $450.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5044910?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5044910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11111554-Tribunal_Order_Redacted.pdf.

24 Birman Close, Half Moon Bay, Auckland 2012, Tenancy Tribunal Case 5044910 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5044910 — net $477.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for retaliatory notice	$450.00	Exemplary damages for retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$477.00
Total payable by Landlord to Tenant	$477.00

Claims and awards in Tenancy Tribunal application 5044910 — net $477.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for retaliatory notice	$450.00	Exemplary damages for retaliatory notice
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$477.00
Total payable by Landlord to Tenant	$477.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names.
The landlord’s termination notice dated 16 October 2024 is declared to be invalid and of no effect.
Wayne Mackenzie must pay [The tenant/s] $477.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing today.
The tenants applied to the Tribunal on 25 October 2024. The tenants requested a declaration that the landlord’s termination notice was unlawful, enforcement of their rights to a Healthy Homes compliance statement, and enforcement of their right to notice before the landlord’s entry. The application was later amended to include a claim for exemplary damages. Background
The parties signed a tenancy agreement for a periodic tenancy from 12 December 2023. The agreement, which is not on the Tenancy Services standard form, described the premises under the heading “Leased Property” as: “...the room, municipally described as [tenancy address] (“the Property”)...”.
The tenancy agreement stated, in the same clause: Renting downstairs space, but access still required from others living in the house as shared washing machine.
An advertisement for the premises included the heading “Self-contained unit to rent...”. The premises were described as a “Large 90sm2 space” with a kitchen, 2 lounges, double bedroom, and bathroom. It was noted that the kitchen had a washing machine.
The tenant wrote letters to the landlord on 4, 5, 16 and 30 September 2024 and 9, 16 and 26 October 2024. The general theme of the letters was the tenants’ complaint that the landlord was accessing their living space to use the washing machine in the kitchen, and their belief that the landlord needed to give 24 hours’ written notice before doing so. There was also complaint about the landlord accessing the garage through the door next to their lounge.
On 8 October 2024, the landlord emailed that he did not have to and would not give notice to use the washing machine, as this was agreed in the tenancy agreement. If the tenants did not agree, the landlord requested that they give 28 days’ notice of their intention to leave.
On 16 October 2024 at 11.11am the tenants requested a Healthy Homes compliance statement and a rent summary.
At 12.12pm the landlord served a 90-day termination notice expiring on 14 January 2024. The notice commented: In the meantime, I will be using the washing machine every Saturday and Sunday until you leave. I don’t wish to be video ‘ed doing so.
The tenants responded in writing at 5.30pm. The letter reiterated the tenants’ concerns about access to their living space and the need for 24 hours’ written notice for each entry. The tenants advised that they would be video recording any unlawful entry. Jurisdiction
The landlord said that the tenants were boarders and therefore, he did not need to give notice before entering the downstairs area.
The upstairs and downstairs areas share a common entrance. The stairs from the entrance lead to the upper floor occupied by the landlord, which comprises 4 bedrooms, bathroom, lounge, kitchen, and dining. The stairs also lead down to an internal door providing access to the lower floor. This comprises a bedroom, kitchen, two lounge areas, and a bathroom.
The Tenancy Services website states that there is a flatmate arrangement if “a homeowner asks you to live in their house with them and rents a room to you”.
Section 5(1)(n) of the Residential Tenancies Act 1986 (the Act) provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
In Harding v Schellevis [2021] NZHC 1265, the High Court considered whether the occupants of a “granny flat” situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms, and a living area. The landlord using the upper area also used a living room, garage, and laundry downstairs. The ground floor occupied by the tenant had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The Court said the decisive factor was the self-contained character of the granny flat, its exclusive use by the tenants and the exclusive use of the rest of the dwelling by the landlord. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. This meant that section 5(1)(n) did not apply.
The self-contained nature of the granny flat was a decisive factor in the High Court’s reasoning. However, even where there is some shared use of facilities the Act may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include “facilities” provided for the non-exclusive use of the tenant.
I am satisfied on the evidence presented that the tenants here were occupying the downstairs area as a self-contained apartment. The downstairs had all the facilities required for residential use. The unspoken understanding was that the tenants had no right to enter the upstairs area occupied by the landlord, and in any event, they had no reason to do so. There were two separate and distinct households.
The downstairs area was physically separated from upstairs by an internal door. The landlord described the downstairs as a shared common area, but in my view, it was the tenants’ exclusive living area. The tenancy agreement does not state that the downstairs area was being shared. The landlord’s purported right of entry was limited to use of the washing machine and did not give access for use as a common living space.
I find that this was a landlord and tenant relationship, and not a flatmates or boarding arrangement. Termination Notice
The 90-day termination notice gave no reason for termination. Currently, the law does not permit landlords to give notice of termination without a prescribed reason, and the reason must be genuine. The termination notice did not specify any of the permitted reasons set out in section 51 of the Act. I find that the termination notice was invalid.
The landlord said the notice was not retaliatory because there had been previous discussions about the tenants moving out. He characterised the termination notice as the “last straw” following poor behaviour by the tenants. The landlord objected to being videoed in his own home and he complained that the tenant would invade his personal space to video him when he went to use the washing machine. The Tribunal was shown videos of the parties videoing each other at the hearing.
For a notice to be declared retaliatory, the tenant must prove that in giving the notice, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or the Act, or by any complaint against the landlord relating to the tenancy (section 54(1) of the Act). Giving a retaliatory notice is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.
I am satisfied on the evidence presented that the landlord was motivated to give the termination notice by the tenant’s complaints about him accessing the washing machine in their unit. The termination notice referred to the landlord’s intention to continue using the washing machine and his objection to being videoed. The landlord may have been partly motivated by the way in which the tenants complained and by their videoing his entry to the premises, but fundamentally the landlord disagreed with the tenants about his right to access the washing machine.
I find that the termination notice was retaliatory and is declared to be of no effect. I am not persuaded that the complaints by the tenants were “vexatious or frivolous to such an extent that the landlord was justified in giving the notice” (section 54(2)). The tenants were raising an important issue.
The Tribunal may award exemplary damages where it is satisfied that it would be just to do so after taking account of the effect of the unlawful act, the interests of the party against whom the unlawful act was committed, and the public interest. The landlord does not have to intend a notice to be retaliatory before exemplary damages can be awarded.
The layout of the downstairs unit was such that the landlord had to cross the tenant’s main living area to access the kitchen. The landlord has also accessed the garage from the tenants’ unit. This required the landlord to walk past the bathroom entrance and the kitchen recess in the main living area.
The tenants have an obvious privacy interest. The landlord’s access to their living space interferes with that interest. The tenants identified 11 incidents when the landlord has allegedly entered their unit without notice between 19 October 2024 and 17 November 2024 for the purpose of laundering his clothing.
The public interest favours protection of the privacy interests of tenants, who are entitled to expect landlords to limit access to that which is permitted under section 48 of the Act. A termination notice cannot be given because tenants raise concerns about a potential breach of those rights. On the other hand, I acknowledge that the tenants did not complain about his use of the washing machine for the first 8 months or so (the tenants said they did not fully understand their rights initially).
I accept that the landlord genuinely believed (and still believes) he is entitled to access the downstairs area because the tenancy agreement says so. I also accept that the landlord (erroneously, in my opinion) genuinely views the tenants as boarders. The landlord thought that the termination notice was justified in this context.
I find that it would be just to award exemplary damages against the landlord. This is tempered by the recognition that the landlord had a different view about his rights of access, based on a misunderstanding of the legal position. I award exemplary damages of $450.00 (equivalent to 1 weeks’ rent). If the landlord continues to access the tenant’s unit without their prior consent, a more substantial award could be warranted. I have not considered whether the landlord’s actions amounted to harassment as this was not included in the application form.
The landlord may wish to agree dates and times with the tenants in advance about when he can enter their unit to access the washing machine. The landlord may also wish to explore installing a washing machine in the garage (which is not part of the tenancy) or his upstairs apartment. Heathy Homes Compliance Statement and Rent Summary
The tenants wrote to the landlord on 16 October 2024, requesting a Healthy Homes compliance statement and a rent summary for the period since the start of the tenancy.
A Healthy Homes compliance statement is required to be included in the tenancy agreement pursuant to section 13A(1CA) of the Act. In my view, a Healthy Homes compliance statement is only required for new or renewed tenancy agreements, as stated in the form on the Tenancy Services website. Although the Healthy Homes regulations applied to the tenancy 120 days after commencement, in my view the landlord does not need to provide a Healthy Homes compliance statement unless the tenancy is renewed.
The landlord does have obligations to provide information about rent, so the tenant can see the period to which any payment of rent relates (see sections 29(3) and 30(1) of the Act). It is an “unlawful act” not to keep such business records. There was no dispute about the rent when a rent summary was requested. The motivation for this request may have been coloured by the parties’ falling out over access to the washing machine. I am not satisfied that it would be just to award exemplary damages on this occasion. Filing Fee and Name Suppression
The tenants’ application has been partly successful. The filing fee is awarded.
The tenants are granted name suppression as requested.

Tenancy Tribunal case 5044910 — Exemplary damages at 24 Birman Close, Half Moon Bay, Auckland 2012,

At a glance

Tenancy Tribunal case 5044910 — Exemplary damages at 24 Birman Close, Half Moon Bay, Auckland 2012,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions