What was Tenancy Tribunal case 5198654 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 5198654?

Compensation: Failure To Maintain: $700.00 awarded to tenant; Property Damage: $800.00 awarded to tenant

What type of tenancy dispute was case 5198654?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 5198654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11756941-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5198654 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 5198654?

Compensation: Failure To Maintain: $700.00 awarded to tenant; Property Damage: $800.00 awarded to tenant

What type of tenancy dispute was case 5198654?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 5198654?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11756941-Tribunal_Order_Redacted.pdf.

45 Lansdowne Road, Appleby, Richmond 7081 Tenancy Tribunal Case 5198654 — Exemplary damages

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Reasons

Claims and awards in Tenancy Tribunal application 5198654 — net $1,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$700.00	t the circumstances as explained by the parties, the landlord is ordered to pay $700.00. I have calculated this at $70.00 per week.
Exemplary damages: Breach of quiet enjoyment	$800.00	Breach of quiet enjoyment
Net award	$1,500.00
Total payable by Landlord to Tenant	$1,500.00

Both parties attended the hearing on 24 April 2025. The tenant attended the hearing by audio visual link.

The tenancy commenced on 2 August 2024 and ended on 17 February 2025.

The premises are set in a rural area. It is a large section with a detached house. There are four bedrooms and two bathrooms with toilets. The owner lives on the adjoining land. The two properties are divided by a wire fence.

The relevant law is found in the RTA.

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

“ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine). Failure to maintain. [The tenant/s] claim that the landlord has failed to maintain the premises.

The tenant said that almost from the very commencement of the tenancy, there was an issue with one of the toilets. The toilet would either not flush at all or would continuously flush. They initially spoke to the owner about the problem. They indicated that the owner quite frequently like to carry out maintenance work himself rather than employing contractors. The owner carried out some work in to the drainage system in the front of the property and initially the problem seemed to be resolved.

After a brief period of time, the problem returned and they advised the property manager, who said that they would arrange for a plumber. A contractor arrived and the problem appeared to be resolved within the week. Unfortunately, the problem returned.

The tenant told the property manager during the week before Christmas about the issue. The tenant told the property manager that as they were going to be away over the Christmas vacation and so there was no urgency with the matter. A couple of weeks after Christmas, the tenant told the property manager that the issue had still not been resolved. Nothing was done by the property manager from that point through until the end of the tenancy on 17 February 2025 .

The property manager essentially accepted the evidence of the tenant and said that there had been some communication difficulties with the owner as English was the owner’s second language.

The evidence indicates that the landlord has breached their obligations under section 45 RTA.

Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair.

Breaching this obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

The landlord has, upon receiving a complaint from the tenant, failed to address the problem within a reasonable period of time. I find that the landlord has committed an unlawful act.

We are 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 in the public interest. See s.109(3) RTA.

For an act to be “intentional” the landlord must actually be aware of the breach. Intentional means “in the sense of deliberately and with full knowledge” of the breach.

The burden of proving this claim is on the tenant. The tenant must prove the claim to the civil standard of “the balance of probabilities.” I found the tenant’s evidence to be vague and lacking in detail. In those circumstances, I do not think that the tenant has proven that the landlord has acted intentionally. This is not however the end to this particular claim. I consider that there has been a loss of amenity to the tenant. The tenant’s rent included payment for the use of both toilets. As there was a second toilet, the inconvenience to the tenant was not substantial. There was however a degree of loss of amenity and taking into account the circumstances as explained by the parties, the landlord is ordered to pay $700.00. I have calculated this at $70.00 per week. As best as I could ascertain the time period from the evidence, it appears that the toilet could not be used for approximately ten weeks.

The tenant said that the internet connection to the premises only worked intermittently. She contacted [internet provider], who came to attend the premises. They tested the system and said that it should be okay. A month later the tenant still was having times when the internet would drop out. [Internet provider] came again and found that the landlord had wired his electric fence to the internet cable. [Internet provider] rewired and fixed the issue. Where there is a complaint that a landlord has failed to maintain premises, I consider that it is appropriate that the tenant raises the issue with the landlord. As there was insufficient evidence of this issue being raised with either the owner or the property manager, the claim is dismissed. Breach of quiet enjoyment [The tenant/s] claim 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) RTA.

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.

There was a wire fence separating the tenants’ premises from the owner’s property. Soon after the tenant moved in, the tenant discovered the landlord standing at the fence in staring into the tenant's premises. The tenant said that this occurred from time to time but was unable to be more specific.

The owner’s family stayed at the owners premise over Christmas. The tenant discovered the owner his wife and children would often stand at the fence and watch them through the fence. The owners and his family did not say anything.

The tenant raised the issue with the property manager and the property manager said that they would speak to the owner. After that, the tenant accepted that occasions when she discovered the owner looking into the property reduced.

The property was in a rural area. The owner kept, amongst other things, turkeys and chickens. The tenant said that the turkeys and chickens would not only come onto her property, but would come into the house. This resulted in bird faeces being left inside the house. The day after the tenant moved into the premises she told the property manager. The property manager said that she would speak to the owner and get some shade cloth added to the fence between the properties. It was two months before the shade cloth was erected. The birds would come onto the tenants’ land every day. The shade cloth only had a limited effect. Eventually, the tenants’ dog killed one of the turkeys which seems to have at least put a halt to the turkey problem.

The owner’s goat came through the fence on two occasions. On each occasion, the tenant returned the goat. The tenant told the owner about the goat being there. The owner said that the tenant should leave it there for a few days as the it was good for the garden. The tenant kept pushing the goat back onto the owner’s property. The owner eventually erected an electric fence which stopped the goat coming back onto the premises.

The property manager indicated that the concerns raised by the tenant were legitimate. She said that she had tried to talk to the owner about the issues raised by the tenant. She said she was never sure whether the owner understood fully. She said that the owner was aware that communications with the tenant should be through the property manager, but that didn't appear to stop the owner. She had spoken to the owner about his livestock and keeping them on his side of the property. The owner agreed, but they would still come over. It took the owner some three months to eventually stop the interruptions by his livestock.

The landlord has breached the tenants quiet enjoyment of the premises. I find they have committed an unlawful act.

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.

For exemplary damages to be awarded by the Tribunal, there must be a finding that the landlord has harassed the tenant. “Harassment” has its ordinary meaning of a pattern of behaviour designed to trouble, worry, distress, wear out, tire or exhaust a tenant. There should be a pattern or series of events. In this case, the unopposed evidence of the tenant was that there had been a pattern or series of events. This included the owner and his family's behaviour in staring at the tenants through the fence, the continued interference with the tenant’s quiet enjoyment by the intrusion of the landlord’s livestock and the delays in attending to either issue satisfactorily.

In setting the level of exemplary damages, I consider that the delay in the landlord attending to these issues satisfactorily is an aggravating feature. It is in the best interest of these tenants and tenants generally to have landlord’s comply with their obligations under the RTA. The continuing nature of the interruptions to the tenants’ quiet enjoyment is an aggravating feature. I am not aware of any other breaches of the RTA by this landlord. Taking those factors into account, the landlord is ordered to pay exemplary damages of $800.00 to the tenant.

Both parties applied for name suppression. The tenant has been substantially successful in this hearing and suppression of the tenant name only is ordered. The landlord has not been wholly or substantially successful in this hearing and the landlord’s application for name suppression is dismissed.

Reasons

Claims and awards in Tenancy Tribunal application 5198654 — net $1,500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain	$700.00	t the circumstances as explained by the parties, the landlord is ordered to pay $700.00. I have calculated this at $70.00 per week.
Exemplary damages: Breach of quiet enjoyment	$800.00	Breach of quiet enjoyment
Net award	$1,500.00
Total payable by Landlord to Tenant	$1,500.00