Published tribunal order
Tenancy Tribunal case 5111749 — Exemplary damages at 67 Union Street, Foxton, Foxton 4814
Decided 16 Jan 2025 · Published 16 Jan 2025 · Application 5111749
- Exemplary damages
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 landlord’s name and identifying details.
- The tenancy of Anton Valli at 67 Union Street, Foxton, Foxton 4814 is terminated and possession is granted to the landlord at 11.59 pm Thursday 23 January 2025.
- The tenant is to pay the landlord $427.00 immediately being exemplary damages of $400.00 and reimbursement of the filing fee of $27.00.
Reasons
- The landlord attended the hearing.
- The tenant was not present at the scheduled start time and so the hearing’s start was delayed by 15 minutes in case the tenant had been delayed. The tenant did not attend the hearing.
- The landlord has applied for: a. Termination of the tenancy for an unremedied breach of the tenant’s obligations. See section 56(1) Residential Tenancies Act 1986 (“RTA”). b. Exemplary damages for the tenant’s failure to allow the landlord access to the premises. See section 48(4)(b) RTA. Standard of proof and evidence
- In considering the landlord’s claims, the standard of proof is “on the balance of probabilities”. In other words, the landlord must establish with evidence that their claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
- The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
- While this decision has not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order.
- Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the landlord’s application with this requirement in mind. Background
- The landlord provided evidence as follows: a. A copy of the pre-tenancy inspection report dated 28 February 2023 showing the premises in a reasonably clean and tidy condition at the start of the tenancy. b. Copies of the Inspection Reports containing photographic evidence of the state of the premises on 6 August 2024 and 5 November 2024, together with photographic evidence of the state of the grounds on 17 November 2024 and 7 January 2025. c. Because routine inspections revealed that the tenant was not keeping the premises reasonably clean and tidy as required by section 40(1)(c) RTA so that it had issued notices to the tenant as follows: i. 26 January 2024 for the premises not being reasonably clean and tidy. ii. 16 August 2024 for the premises not being reasonably clean and tidy. iii. 10 October 2024 for the grounds not being reasonably clean and tidy. iv. 22 October 2024 for the grounds not being reasonably clean and tidy. v. 26 November 2024 for the premises not being reasonably clean and tidy. d. A copy of the notice of 26 November 2024 that provided: “As per the attached photos, please do the following:
- ) Interior: Tidy all rooms, including picking up debris, removing rubbish, storing items in an organised fashion. Clean the kitchen, including the oven and back of the front door. Clean the bathroom, particularly the bath, toilet and floor. Tidy the laundry.
- ) Exterior: Mow the lawns and remove or store items scattered around the grounds of the property so that it is tidy. Anton, maybe consider getting some storage options from second hand stores, or through a charity organisation. If you cannot rectify this breach, additional measures may be pursued. We may proceed to apply to the Tenancy Tribunal to request termination of your tenancy and seek compensation through a court order. This breach notice has been emailed and will expire 11/12/2024.” e. The landlord gave notice to the tenant that it would be inspecting the property at 9 am on 17 December 2024. A reminder about the inspection was sent to the tenant on 13 November 2024. f. On 17 December 2024 the tenant refused the landlord entry to the property and told the landlord that “he had done nothing to tidy up and doesn’t care if we take him to court.” The landlord advised that he asked the tenant three times to allow entry to the property for the purpose of inspection and was denied each time. g. The landlord advised that nothing had been to tidy the grounds to the premises and they were now in worse condition. He advised that from what he could see through the back door, it appeared that nothing had been done to clean the kitchen. h. The property was renovated prior to the start of the tenancy. The landlord is seriously concerned about the continuing failure by the tenant to make any efforts to clean or tidy the property and believes that the property is deteriorating due to the tenant’s neglect of basic cleaning and hygiene. i. There are clothing items, toys and rubbish strewn throughout every room of the house and the floors have not been cleaned or vacuumed since notices have been issued. The stove top has never been cleaned and spillovers are now encrusted over its surface. There are food scraps, wrappers and unwashed dishes piled up throughout the kitchen area. Under the breakfast bar in the lounge area, food wrappers litter the area, together with evidence of mice faeces and cockroaches. Mice faeces are evident throughout the property. Dog faeces are clearly visible in a photograph of the corner of one room. The toilet is filthy with faeces and urine and does not appear to have been cleaned in months. The bath, shower area and basin are grey with dirt and slimy with soap build-up. The door to the laundry cannot be fully opened due to the pile of laundry that has not been done in months. The lounge carpets are becoming stained and smell of urine. j. The photographic evidence shows that the section is completely overgrown and there are piles of rubbish or discarded chattels throughout. The landlord gave evidence that it has not been mown in months and the garden has received no attention. k. A file note from a routine inspection on 6 August 2024 records: “He (Anton) doesn’t care what we think of the untidiness, and feels empowered by recent Tenancy Tribunal and District Court Results... He said he doesn’t care if we breach him and says we keep breaching him nothing happens.” l. A file note from a routine inspection on 3 September 2024 records: “There was no improvement, and things had got worse since our last visit. There has been no attempt at tidying the house and it stunk badly. Anton is not concerned whether we file at Tenancy Tribunal or not. He feels that due to past (ruling)s he can treat the house however he wants and we have no power to end the tenancy in a practical sense.” m. A file note from a routine inspection on 5 November 2024 records the tenant making the following statements: “It’s messy but I don’t care. You can take me to court all you like. I cannot be fucked. You can breach me for whatever, I am over it. I haven’t done any cleaning as I can’t be bothered.” It also records the tenant abusing the landlord and telling her to “get off my property” multiple times and calling the police. n. A file note from an inspection on 17 December 2024 records: “No change to grounds, lawn and garden; in fact they were considerably worse. I spoke on the rear porch with Anton the tenant, he wouldn’t let me in. He said he had done nothing to tidy up and doesn’t care if we take him to court. o. A copy of the Tribunal’s prior order 4894700 dated 31 July 2024 concerning the presence of dogs on the property which concluded: “11. The tenant needs to be aware that his failure to act on the landlord’s notice within the 14-day period has seriously risked the Tribunal ending his tenancy. He and his family would then find themselves without a home. This is not a step that the Tribunal takes lightly. It needs to be certain that termination is the appropriate remedy and that it would be unfair to the landlord to refuse to end the tenancy.
- The tenant has narrowly avoided his tenancy being terminated today. However, he needs to be aware that he has obligations under his tenancy agreement and that further breaches may result in his tenancy being terminated.
- Going forward, the tenant would be well advised to take the concerns of his landlord seriously and deal with any issues promptly.” p. The landlord drew the Tribunal’s attention to its order 4805477 dated 11 April 2024 evicting the tenant for breaching his obligation to keep the premises reasonably clean and tidy. The landlord noted that this order was quashed by an appeal to the District Court on 25 July 2024. See Valli v Caballero and Geraghty [2024] NZDC 15485.
Should the tenancy be terminated?
- The landlord’s evidence establishes on the balance of probabilities that the premises falls well short of being reasonably clean or tidy as viewed by a reasonable bystander. Indeed, the photographic evidence is that the premises are dirty, untidy, rubbish-strewn, overgrown and becoming a health hazard. An objective passerby could reasonably conclude from the seriously overgrown lawns and scattered rubbish that the property was and had been vacant for some time. It is reasonable to assume that in the summer months, the length of the grass will become a fire hazard.
- The Tribunal must consider 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 District Court in Terangi v Housing New Zealand Corporation DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following were relevant factors in considering a decision under section 56 RTA: a. Whether the breach was inadvertent or deliberately committed. b. Whether the breach was within or beyond the tenant’s control. c. Whether the breach involved an immoral or illegal use of the property. d. Whether a tenant has made or will make good the breach of the covenant and is able and willing to fulfil his obligations in the future. e. The conduct of the landlord. f. The personal circumstances of the tenant. g. The financial position of the tenant. h. The gravity of the breach. i. Whether a breach has caused lasting damage to a landlord. j. Whether considering the nature of the breach, it is proportionate to evict the tenant.
- For the following reasons I have determined that it would be inequitable to refuse to make an order terminating the tenancy: a. The tenant has repeatedly refused to take any steps to make the premises reasonably clean and tidy despite: i. Four breach notices issued from 16 August to 26 November 2024. ii. The breach notice of 26 January 2024 and the quashed Tribunal order of 11 April 2024 which terminated his tenancy. iii. The filing of this application for termination of the tenancy. iv. The comments in the Tribunal’s order of 31 July 2024. v. The comment at paragraph 80 of Judge L C Rowe’s decision of 25 July 2024 that while he had been successful on appeal: “Mr Valli also is obliged to keep the property in a state of reasonable cleanliness and tidiness, which does not just apply to when the property is being inspected. The outcome of this appeal does not alter this obligation.” b. The tenant has been made aware of the seriousness of the breach and the real risk that his tenancy may be terminated by the Tribunal. c. The landlord has tried diligently for a year to get the tenant to meet one of his most basic obligations and the tenant is now defiantly refusing to do so. His attitude has deteriorated to where he has unlawfully refused the landlord entry to the property, called the police and ordered the landlord off the property. The landlord’s evidence is that the tenant has no intention of remedying the breach. d. This is not a situation where the tenant has tried to remedy the breach but fallen short by a small margin. For the last five months, since August 2024, the evidence shows that the tenant has simply refused to take any steps to make the premises reasonably clean and tidy. The situation and the tenant’s attitude have steadily got worse over the last year to where he openly communicates his intention to disregard his obligation to keep the property reasonably clean and tidy. e. The landlord has a significant investment in the property and is not unreasonably concerned about its deterioration due to the neglect of the tenant. There is substantial cost in having the property cleaned, the lawns mown and the gardens tidied so that the property is returned to a reasonably clean and tidy condition. From the Tribunal’s recent, local experience, those costs will exceed the bond held. f. The tenant is living at the property with two young children. As the tenant was not present at the hearing, the Tribunal has no evidence of his financial position. However, it would be reasonable to assume that his financial position is weak and that the consequences of termination will be significant. g. However, in the circumstances detailed above, termination of the tenancy is not disproportionate to the longstanding, intentional and serious breach. The tenant cannot simply disregard his obligations under the RTA and the clear warnings of the Tribunal and a District Court Judge, and expect that there will not be a serious consequence – termination of his tenancy. Exemplary damages
- A landlord may enter the premises during the tenancy after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
- Not allowing the landlord access pursuant to a valid notice without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A RTA.
- The landlord has persuaded the Tribunal on the balance of probabilities that the tenant denied the landlord entry to the premises for a property inspection for which the landlord had given effective notice.
- The tenant has committed an unlawful act.
- 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.
- The tenant had received valid notice of the inspection and knew its purpose. He had also received a reminder. He denied the landlord access intentionally.
- The effect of his action was to deny the landlord the opportunity to inspect the property to determine compliance with its 14-day notice. Given the valid and longstanding concerns of the landlord about the state of the premises and the tenant’s neglect of them, it was important for the landlord to carry out the inspection.
- The purpose of exemplary damages is to punish and deter. It is in the public interest that tenants are deterred from denying landlord’s their statutory right of entry. A failure by a landlord to obtain access to inspect their property may impact on the landlord’s obligations to its insurer. In this case, the landlord had a legitimate interest in inspecting the property and the tenant offered no excuse to deny entry. Given the state of the grounds and the exterior of the premises, it is reasonable to infer that the tenant denied the landlord access because the tenant had not taken any steps to make the interior of the premises reasonably clean and tidy.
- It is fair and reasonable to award a sum of $400.00 to the landlord which is a sum significant enough to the tenant to reflect the seriousness of his unlawful act.
- Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.