What was Tenancy Tribunal case 5067188 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 5067188?

Property Damage: $750.00 awarded to tenant; Rent Arrears: $8,871.42 awarded to landlord

What type of tenancy dispute was case 5067188?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5067188?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11510195-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5067188 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 5067188?

Property Damage: $750.00 awarded to tenant; Rent Arrears: $8,871.42 awarded to landlord

What type of tenancy dispute was case 5067188?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5067188?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11510195-Tribunal_Order_Redacted.pdf.

19B Lomond Street, Takapuna, Auckland 0622 Tenancy Tribunal Case 5067188 — Rent arrears

Claims and awards in Tenancy Tribunal application 5067188 — net $3,521.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 11/12/2024	$8,871.42		Rent arrears to 11/12/2024
Exemplary damages		$750.00	Exemplary damages
Total award	$8,871.42	$750.00
Net award	$3,521.42
Total payable by Tenant to Landlord	$3,521.42

Claims and awards in Tenancy Tribunal application 5067188 — net $3,521.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 11/12/2024	$8,871.42		Rent arrears to 11/12/2024
Exemplary damages		$750.00	Exemplary damages
Total award	$8,871.42	$750.00
Net award	$3,521.42
Total payable by Tenant to Landlord	$3,521.42

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The term of the fixed-term tenancy of Maddisyn Ann Cederwall, Jordyn Beverley-Ann Cederwall, Canan Mccarthy Aslankilinic and Annette Mabel Meha at 19B Lomond Street, Takapuna, Auckland 0622 is reduced and now ends on 11 December 2024.
Maddisyn Ann Cederwall, Jordyn Beverley-Ann Cederwall, Canan Mccarthy Aslankilinic and Annette Mabel Meha must pay [The landlord/s] $8,871.42 immediately.
The bond centre is to refund the bond of $4,600 to the landlord immediately.

Reasons

Both parties attended the hearing.
The tenancy was for a fixed term that began on 24 February 2024 and was due to end on 23 February 2025. Why the tenants wanted to leave early.
In August 2024 three of the tenants had their cars broken into. The unit they rented, which is the second one back from the road, had no off-street parking. Their cars were parked on the street, just outside the complex.
They discovered two security cameras attached to the front unit, which have views of the street parking, just outside the complex and about 2m of the shared driveway (to this unit which is the second one back from the road and 5 other units in the complex). They asked the property manager whether the cameras might assist the Police in locating the perpetrators of the car thefts.
The property manager thought initially that the front unit owners had put the cameras there. He then discovered, upon making further enquiry, that it was the owner that had installed them when the units were constructed, about two years previously.
The camera footage was eventually made available to the Police. While viewing the footage, the owner became concerned that the tenants had more occupants living at the property, than the tenancy agreement permitted.
Instead of discussing the issue with the tenants the property manager issued a 14-day notice regarding this alleged breach.
The tenants were upset at this as they did not consider it fair. They said they all have partner’s that stay from time to time. While one of their partner’s was staying more frequently, partly because of the vehicle damage that had recently occurred, he had not moved in permanently. He had his own place.
The tenants then became concerned about the landlord’s scrutiny of their actions and exactly what film footage the landlord had viewed.
A routine inspection occurred shortly after this. The property manager reported the results of this inspection in a most unsatisfactory way. While no 14 day notice was issued the September 2024 report said the inspection revealed “MAJOR ISSUES and serious concerns” with respect to the tenants obligation to keep the property reasonably clean and tidy. The photographs provided clearly show that this was not the case, the major concerns were in fact very minor issues. The inspection report also stated Pets?. The property manager said this was because he had seen a cat at the complex when he did the inspection and recorded it on his phone. One of the tenant’s thought he was filming her, but he said it was only the cat that he filmed.
The tenants were increasingly concerned that it was not tenable for them to continue living at the property, if they were going to be constantly in breach on trivial matters, and on 9 September 2024 asked the landlord to release them early from the fixed term. The landlord said that they could break the contract early, provided they paid break lease fees and rent until a new tenant could be found. The property was advertised for rent the next day and several viewings occurred at times to suit the tenants.
The tenants moved out on 29 September 2024.
They asked the property manager to agree that they only pay rent until 25 October. This request was declined and the landlord confirmed that the tenants would be liable for rent until a new tenant was found.
Viewings continued; a suitable applicant tentatively agreed to a new tenancy from 15 November 2024 but then declined to sign the agreement, as they found somewhere else.
The tenants then agreed at mediation on 29 October 2024 that they would “contribute $150 per week towards the cost of rent for new tenants who sign up to rent the tenancy – as an incentive to have the tenancy rented out as soon as possible”.
A new tenancy commenced on 12 December 2024, at the reduced rent until 25 February 2025. The tenants have paid the additional rent subsidy and a $500 break lease fee.
The landlord is claiming for rent owing until the end of the tenancy on 11 December 2024 and has provided rent records which confirm the amount owing.
The tenants do not dispute the amount claimed is owing until the property was relet but claim the rent liability should be ended sooner as it would be fair to release them from the fixed term considering the landlord made it untenable for them to live there by breaching their right to quietly enjoy the property.
The claim with respect to compensation/exemplary damages for breach of quiet enjoyment will be considered separately.
The tenants could have but did not apply to the Tribunal for a reduction of the fixed-term tenancy.
Had they done so s 66 of the Act would have permitted the Tribunal to reduce the fixed term tenancy but only if the following requirements, which have been strictly applied, had been established: a. there has been an unforeseen change in their circumstances; and b. The tenants would suffer severe hardship if the term was not reduced; and c. Their hardship would be greater than the hardship to the landlord if the term was reduced. See section 66(1) Residential Tenancies Act 1986.
The Tribunal would also likely have ordered the tenants to also pay the landlord reasonable compensation for any resulting loss from the breach of contract. See section 66(2) Residential Tenancies Act 1986. The break lease fee and lost rent would therefore likely be part of the reasonable compensation considered.
I have set those provisions out for the tenants benefit to highlight the high threshold for breaking a fixed term contract. That is because, as a matter of law the landlord was entitled to rent until the end of the fixed term. The rent liability either ends at the end of the term, or earlier by agreement. The agreement here was that it would end earlier but only if a new tenant was found.
The landlord’s agreement to an earlier termination is concessionary.
As is standard practice the landlord agreed to assist with finding a new tenant, but that agreement was on the condition the tenants paid the rent until the new tenancy began.
The rent arrears requested are proved by the rent summary provided. The party’s agreement that the tenants would pay the rent until the new tenancy began, is also confirmed by the mediation agreement confirming that the tenants would pay the additional rental loss, until the end of the fixed term. There is simply no way out for the tenants. It is what the law says, what they agreed and the fact that it took longer than they thought it would to relet the property does not make a difference. That is unless the landlord has acted or delayed unreasonably in reletting the property as the landlord has a duty to mitigate any loss incurred. That submission will now be considered.

Is the landlord liable to pay compensation?

The tenants submitted in the alternative that the landlord did not act with sufficient urgency to find a new tenant, after they requested this on 9 September 2024.
The landlord disputes this noting that the property was advertised for rent the following day after the tenants requested the early release. Several viewings were then held in the three-week period after this and before the tenants left, but they were at very specific times to accommodate the tenants wishes.
More frequent viewings were then held once the tenants had left but it was a “sluggish” market that meant applicants had a choice pf properties. The landlord said a total of 25 viewings were held. Two formal applications were made, one prospective tenant decided not to proceed and finally a new tenant was found, when the rent was reduced.
The tenants did not ask the landlord to consent to them assigning the tenancy (which would have involved them finding suitable replacement tenants). I have set out the relevant law regarding a landlord’s obligation with respect to a request to assign a tenancy which is contained in section 43, as it provides guidance when considering whether the landlord acted reasonably with respect to the agreement to break the lease.
As noted, it is also relevant that a landlord has a duty to mitigate loss arising from the tenants’ request to break the fixed term, that is contained in section 49. Assignment of tenancy by tenant Section 43 states that (1) A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. A landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent.
I am unable to find the landlord acted unreasonably or without reasonable urgency in attending to the finding of a replacement tenant. The timeframes outlined and actions taken, objectively viewed, do not support that finding. The property was advertised for rent the day after the tenants requested the early release and 25 viewings were held. The fact the market turned, and the tenants were not expecting this, is the most likely explanation for the delay. The tenants could also have assisted with finding suitable replacement tenants themselves.
I am satisfied, having carefully considered the evidence provided that the tenants are liable for the rent until a replacement tenant was found, which is awarded. They have already paid the break lease fee and additional rental, as they agreed to do at mediation, so no orders are required regarding those matters. Tenant’s application for compensation and exemplary damages
Maddisyn Ann Cederwall, Jordyn Beverley-Ann Cederwall, Canan Mccarthy Aslankilinic and Annette Mabel Meha claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
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.
The tenant’s claims centred largely on the events outlined above and the actions of the property managers they dealt with. There was an earlier incident, with an inspection that the tenants had asked to be rescheduled. The property manager’s initial reply that he could not reschedule and that the tenants did not need to be home was correct. Despite this, after further discussion, the inspection was rescheduled, so nothing really turns on this.
The tenants more serious concern was with what they consider was a breach of their privacy when the landlord used the video or security footage to monitor there and their visitors coming and going from the property and then issued the 14-day breach notice, regarding an additional occupant living at the property. They say this was unnecessary and unfounded and a breach of privacy.
I am unable to find a breach of privacy. This was not a camera installed at the property it was installed for street and entranceway security. The tenants had asked for the video evidence to assist the Police. The recording was of the street and very front part of the driveway and therefore not directly of their unit which was further back. It is not uncommon to have security cameras on public roads. The landlord’s evidence was that the images were dark and blurry and of limited value for the Police, although it appears they were sufficiently precise that one of the tenant’s partners was recognisable.
It is the use of the video clip to then issue the 14-day notice that is the more concerning aspect here. The tenants are a group of young women relatively new to renting. I accept they were trying hard to be good tenants and comply with their obligations and were seriously concerned when they received the 14- day breach notice, coming as it did, so soon after the damage to their cars had occurred. This concern was because despite knowing they were not in breach and therefore that the notice was wrong, they were unsure how to defend themselves and had been threatened with further Tribunal action if they did not comply.
The landlord agreed at the hearing, that a discussion with the tenants around the number of occupants and the limitations on that set out in the tenancy agreement may have been preferable to issuing the notice, causing the significant concern, and then having the discussion.
Given that the original tenancy agreement had already been amended to include an additional occupant (and thereby as a matter of logic, set aside the clause in the agreement restricting the total number of occupants to 3), it is not at all clear that the alleged breach had even occurred. The tenant’s explanation that her partner was a frequent visitor, but had his own place where he permanently lived, could then have been provided before the issue was escalated.
Soon after this the property manager sent the clearly inflammatory and incorrect inspection report. The wording “MAJOR ISSUES and serious concerns” with respect to the tenants’ obligation to keep the property reasonably clean and tidy not unsurprisingly distressed the tenants further.
The photographs provided clearly show that the dusty floor, dusty deck, blocked drain in the bathroom (which cannot be seen) and apparently grubby electrical switch in the garage (again not visible on the photos), were in fact very minor issues.
The landlord is an experienced property manager, well familiar with the RTA requirement that a property be kept in a “reasonably” clean and tidy condition. To report that this standard was seriously breached, and a Tribunal application would follow if the issues were not remedied, is both inflammatory and patently wrong.
While the landlord said this was because of a computer-generated form, it is for the landlord to check what is sent and change that form and the content of it, if required. The inspection report also stated Pets? And then that unpermitted pets are not allowed. This was included, because the property manager was apparently trying to find an owner for a cat he had seen on the driveway, the day of the inspection. The fact the tenant thought he was filming her, while incorrect, was perhaps not surprising.
Quiet enjoyment effectively means the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agent.
The landlord’s increasing visits and breach notices, after the burglary has clearly uneased the tenants and I accept would have amounted to interfering with their comfort.
I find the landlords have committed an unlawful act. The pattern of behaviour, directed at the tenants’, is in my view sufficiently serious that it can fairly be considered harassment in the sense that it did “wear the tenants down”. It was the receipt of the unfair property inspection report, with its threat of Tribunal proceedings including an application for termination, that was the final straw for them.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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. See section 109(3) Residential Tenancies Act 1986.
I have inferred intent. The landlord is an experienced property management company, and the so clearly wrong misinterpretation of the cleanliness standard can be considered deliberate and bordering on a misuse of power. The fishing expedition regarding the ownership of the cat and the filming that followed was also ill advised. Finally, the issuing of the 14-day notice with respect to additional occupants was also ill advised and wrong. Tenants are permitted visitors and the tenancy agreement had already been varied with respect to the 3-occupant rule. At the very least the property manager ought to have enabled the tenants to provide an explanation before the threatening notice was issued.
The effect on the tenants was significant. They were worried and exhausted by having to deal with the barrage of issues raised in the weeks after having to cope with the car thefts. I have awarded $750 exemplary damages.
The public interest requires that landlords and in particular professional property managers are sent a clear message that they must be reasonable when exercising, what is often in reality, considerable powers in relation to tenancies.
The landlord requested name suppression. As the application is partly successful that must be approved. The tenants did not request name suppression.
Both parties paid filing fees. Both have been partly successful, so no order is made that one party reimburse the other.

Tenancy Tribunal case 5067188 — Rent arrears at 19B Lomond Street, Takapuna, Auckland 0622

At a glance

Tenancy Tribunal case 5067188 — Rent arrears at 19B Lomond Street, Takapuna, Auckland 0622

At a glance

Award balance

Claims & awards

Order

Reasons

Is the landlord liable to pay compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the landlord liable to pay compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions