Published tribunal order
Tenancy Tribunal case 5067251 — Tenancy dispute
Decided 19 Mar 2025 · Published 19 Mar 2025 · Application 5067251
- Exemplary damages
- Harassment
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ name and identifying details.
- The landlord must carry out the following work to the premises, which must be completed by 5pm on Wednesday, 19 March 2024: a. Finish construction of fence and install gate at front of house – to provide privacy and security from street front to rear of section; and b. Complete pathway at front of section, adjacent to driveway; and c. Disconnect or remove security cameras at the premises and provide certification from an appropriately qualified person confirming that the cameras cannot be accessed or remotely operated by anyone other than the tenants.
- As an alternative to compliance with Order 2, the landlord must pay the tenant $5,000 immediately.
- If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $3,500 (broken down as follows): a. Fence & Gate - $2,000 b. Complete pathway - $500 c. Disconnect cameras and obtain certification - $1,500 These costs may be set off against rent payable.
- [The landlord/s] must pay [The tenant/s] costs of $27.00 immediately being the filing fee on the tenant application.
- The Tenant’s claim for exemplary damages is dismissed.
- The Landlord’s application for termination of the tenancy is dismissed.
Reasons
- Both parties attended the hearing.
- The tenant has applied for work orders and compensation and exemplary damages for breaches of the landlord’s obligations.
- The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. Work Orders
- The tenant claims that the landlord did not complete construction of a fence and gate between the front of the dwelling and back yard and did not complete a pathway adjacent to the driveway. The tenant wants the problems fixed.
- The tenant also wants security cameras removed from the premises. The tenant says the property owner has had remote access to the cameras and/or can access (video and audio) recordings from the cameras. The tenant says this is a breach of their right to quiet enjoyment and privacy.
- Where the Tribunal finds that the landlord has failed to comply with its obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986 (RTA).
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. See sections 78(2) and 78(2AA) RTA.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.
- The advertisement for the premises referred to a new fence being erected for privacy. Text communication between the landlord and tenant, also confirm an agreement for the fence to be completed. I find that there was an agreement for a fence with gate and path adjacent to the driveway to be completed.
- Under section 45(1)(a) - (ca) RTA 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements. Even if there was no agreement, I find that the fence with gate and path need to be completed in order to provide these premises in a reasonable state of repair.
- I have made work orders in respect of those two issues.
- The tenant also sought a work order for removal of security cameras at the dwelling. There is evidence that the property owner and/or her partner have accessed footage from the cameras. This breaches the tenant’s right to quiet enjoyment and is unacceptable. 1
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 2 See section 38(2) RTA. In this context, “quiet enjoyment” means that the tenant has a right to live in a property as if it was their own, subject to their obligations as set out in the RTA.
- The landlord believes that a modem has been removed, preventing the cameras from recording or transmitting but could not provide clear evidence of that. The tenants have residual concerns for their privacy, which I accept having regard to the evidence and communications since the tenancy started in November 2024.
- The security cameras at the premises must be disconnected or removed and the landlord must provide certification from an appropriately qualified person confirming that the cameras cannot be accessed or remotely operated by anyone other than the tenants.
- The certification must be provided to both the Tribunal and the tenants and, if the tenants have any residual concerns regarding the cameras, they can request that the application is reopened and returned to me for further directions. 1 For completeness, I note that the Tenancy Agreement refers to [The landlord property management company] as the landlord, without reference to a principal or property owner. However, there is no evidence that [The landlord property management company] has accessed the security cameras. 2 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.
- At the hearing, the tenants also asked for the landlord to attend to other maintenance issues. These were the repair of ensuite light and the ensuite sliding door lock. They were not included on the original application, so I make no findings, but record the landlord’s acknowledgement that the repairs will be done.
- The tenants also introduced claims for compensation at the hearing, which were not included in their application. I have not awarded compensation, in this instance. The work orders are the appropriate remedy for the breaches identified above.
- The tenant also claimed reimbursement of its time. This amounts to a claim for costs. This is a lay Tribunal. Costs are only available in very limited circumstances. See section 102(2),(3)(b) RTA. The claim for reimbursement of time is dismissed. Unauthorised Access
- [The tenant/s] claim that the landlord (or its agent or representative) has entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986. 3
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- There is evidence of the owner’s partner visiting the property without notice or consent. If this continues, it may amount to a breach of s38 RTA, or the tenants may have other avenues of redress available to them.
- At this stage, the evidence does not establish a breach of s48, except in relation to a visit by an electrician on 8 November 2024. The tenants did not receive the proper notice. However, I find that this was result of poor communication, rather than an intentional breach. I decline to award exemplary damages. 3 For the purposes of s48, premises does not include land. See s48(7) RTA.
- The landlord is now on notice, that if there are further breaches of this nature the tenants may be entitled to compensation and exemplary damages. Dogs – Breach of Tenant Quiet Enjoyment or Should the tenancy be terminated?
- The tenant has two dogs at the premises. The tenant says that there is no “no pets” clause in the tenancy agreement and that the landlord’s communication about the dogs amounts to a breach of their quiet enjoyment.
- The landlord says that the dogs were not authorised and must be removed, or the tenancy terminated. The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
- The advertisement for the premises referred to pets being negotiable. The landlord argued that the advertisement created a positive obligation on the tenant to disclose if it had pets. The tenants said that they believed, from their TradeMe search filters, that pets were allowed.
- The tenant answered all questions in the pre-tenancy application form. I do not find any evidence that the tenants were deceitful or dishonest in their application or pre-tenancy checks.
- As at the date of this tenancy agreement, the RTA did not refer to pets. 4 There is no general prohibition or restriction on pets and the tenancy agreement does not include a “no pets” clause. The tenants are entitled to have pets at the premises, provided they comply with their obligations as set out in the RTA. At this stage there is no evidence of damage (or any other breach of the tenant’s obligations).
- If a landlord wants to restrict a tenant’s use or enjoyment of the premises, then the obligation is on the landlord to seek the tenant’s permission/agreement to that restriction. Even then, a “no pets” clause may not be enforceable.
- The inter-relationship between a “no pets” clause, s11 RTA and the tenant’s right to quiet enjoyment was discussed in Mullavarapu v Wilkie [2023] NZTT 4421925. In that case, the Tribunal declined to enforce a no pets clause and stated: “24.There is no provision in the RTA which prohibits a tenant from having pets in a tenancy. Neither is there any provision that would allow pets to be prohibited.
- Rather, there is a statutory right in the RTA for a tenant to have quiet enjoyment of the premises (section 38). 4 Provisions regarding pets were introduced by the Residential Tenancies Amendment Act 2024, but no date has been set for those amendments to take effect. The amendments will not apply to these pets in any event. See cl 2(4), cl20, cl44 (amending sch 1AA, cl 46(1)(b)(iii)) Residential Tenancies Amendment Act 2024.
- The word “quiet” is used in the sense of “peaceful”, or “without interference”, not in the acoustic sense. The word “enjoyment” refers not to deriving pleasure from possession, but to being able to experience the full benefit of the right of possession. The phrase therefore translates to “without interference with possession”: Kenny v Preen [1963] 1 QB 499. Other valid explanations might include referring to undisturbed occupation, or to talk about an action causing an interference with the tenant’s right to treat the property as their own home.
- The principle of quiet enjoyment means that the tenant is able to live in the premises how they wish to live, and unless what they are doing is unlawful in some way, it is not for the landlord to interfere with that right. (emphasis added)
- However the right to quiet enjoyment is not absolute, because the RTA does bring in some limitations. For example with notice a landlord can enter the premises for inspections or undertake maintenance. But there is no such limitation in the RTA around a landlord being able to preclude the tenant from having pets.
- Taking into account the tenants statutory right to quiet enjoyment of the premises, I can see no compelling reason to permit the ‘no pets’ clause to be enforced.”
- The presence of pets at the property is not a breach of the tenants’ obligations. It follows that the application for termination fails at the first hurdle. See s56 RTA.
- The application for termination is dismissed.
- The landlord’s communication to the tenant regarding the dogs, could be considered abrupt but is more consistent with a disagreement between the parties than a breach of the tenant’s quiet enjoyment. The status of the dogs has now been determined. Any application for breach of quiet enjoyment arising from discussions about the dogs is dismissed.
- As the tenant was substantially successful with its application, I award reimbursement of its Tribunal application fee. Following discussion with the parties at the hearing, I have suppressed both parties’ details.