What was the outcome of Tenancy Tribunal case 5267779?

The tribunal order states: The tenancy of Anne Elizabeth Rowsell will terminate at 5pm on 4

How much money was awarded in case 5267779?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5267779?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 5267779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12013463-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5267779?

The tribunal order states: The tenancy of Anne Elizabeth Rowsell will terminate at 5pm on 4

How much money was awarded in case 5267779?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5267779?

The primary dispute was 14-day notice. Related themes: State of repair, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 5267779?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12013463-Tenancy_Tribunal_Order.pdf.

148A McMillan Street, Tisbury, 11, Invercargill 9877 Tenancy Tribunal Case 5267779 — 14-day notice

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Order

Claims and awards in Tenancy Tribunal application 5267779. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
interfering with her reasonable peace, comfort, or privacy in her use of the premises. 5. Mr Diack shall refund the bond	$300.00		interfering with her reasonable peace, comfort, or privacy in her use of the premises. 5. Mr Diack shall refund the bond

The tenancy of Anne Elizabeth Rowsell will terminate at 5pm on 4 th July 2025.

Power has been paid up until 31 May 2025 and no arrears remain up to that date.

Anne Elizabeth Rowsell will pay outstanding power from 1 June until 4 th July 2025 when it is due and owing.

Stanley Allan Diack must pay Anne Elizabeth Rowsell $750.00 immediately for interfering with her reasonable peace, comfort, or privacy in her use of the premises.

Mr Diack shall refund the bond of $300.00 at the end of the tenancy if no further issues arise with the exit inspection.

Reasons

Both parties attended the hearing.

BACKGROUND

The background to this matter is that the property had sustained significant damage from a fire and was rebuilt in 2020. Ms Rowsell was the first tenant and had previously resided at the property for about a year in October 2022 before moving on. She contacted Mr Diack seeking to return to the property and moved in again on 12 April 2025. She continued to remain in occupation on the day of the hearing.

The residence that Ms Rowsell occupied is a self-contained unit that had one entrance off its living room into the end of the hall way of the main residence, occupied by Mr Diack and his wife. ISSUES: A) WAS THE ARRANGMENT A BOARDING HOUSE/BOARDING SITUATION?

The first issue for me to determine is whether this was a ‘boarding house’. Mr Diack believed the arrangement was a boarding situation and he referred to both terms throughout the hearing.

The parties never signed any agreement, boarding, room sharing or otherwise. Mr Diack stating that was because Ms Rowsell was a ‘boarder’, and it was a ‘boarding house arrangement.’

Firstly, in considering if the property was a boarding house I must look to Section 66b of the Residential Tenancy Act. This states the following: 66BInterpretation for this Part In this Part, unless the context otherwise requires,— boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time boarding house tenancy means a residential tenancy in a boarding house— (a) that is intended to, or that does in fact, last for 28 days or more; and (b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house boarding house tenancy agreement means a tenancy agreement (as defined in section 2(1)) relating to a boarding house tenancy boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room.

The lay out of this property is that the self-contained ‘unit’ where Ms Roswell resided was attached to the main house of Mr Diack, the landlord. However, it is completely self-contained. It is able to be blocked off from the hallway that lead to the main living area of Mr Diacks residence and does not have communal living. It had two separate doors to gain access.

There were no common areas that the landlord and tenant shared.

The evidence of Mr Diack was clear at the hearing that he was not allowed on Ms Diack’s property to remedy repairs. Ms Rowsell did not share any common facilities nor was not she provided with meals. It was a completely separate entity.

Therefore, I do not accept on the evidence that this is a boarding house.

I now turn my mind to whether Ms Rowell was boarding rather than a tenant given she occupied part of the landlord’s premises.

The higher courts have confirmed that a ‘premises’ in terms of the Residential Tenancies Act may be part of a larger premises. Kahi v Lucas HC Auckland HC81/96, 23 September 1996.

In the case of Harding v Schellevis & Ors [2021] NZHC 1265. Justice Walker determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence. c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions. d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.

The decisive factors in this case to support that fact that it is a tenancy under the Residential Tenancies Act must be the self-contained character of a ‘granny flat, its exclusive use by Ms Roswell, the occupier and the exclusive use of the rest of the dwelling by Mr Diack and his family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling.

As a result, I find that Ms Rowsell was a tenant and therefore the Residential Tenancies Act applies, and the responsibilities and obligations of the tenant and landlord outlined in the Residential tenancies Act 1986 must be complied with.

Mr Diack is incorrect in his understanding that Ms Rowsell was a ‘boarder’ and he could terminate when he chose to and that he did not need a tenancy agreement. B) DID MR DIACK BREACH SECTION 45 OF THE RESIDENTIAL TENANCIES

ACT 1986?

Ms Rowsell claims that Mr Diack has breached his obligations under section 45 of the Residential Tenancies Act 1986.

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

Breaching any of these 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 evidence submitted in this case was largely text exchanges and A he said she said situation. The relationship between the parties broke down in the very early stages of the tenancy. It only commenced on 12 April 2025.

Ms Rowsell claims that she asked on many occasions for Mr Diack to fix a toilet seat that kept moving, to clean out the water tanks, to have the TV arial looked at and hot water cylinder checked.

This caused friction between the parties. Mr Diack believed he was not able to enter the property because Ms Rowsell wouldn’t allow it and he repeatedly told her she could leave. He also stated that he had fixed the toilet seat previously and that the amount of rain and his own experience did not cause him concern to have the water tank looked at and refused to do so. The property had been rebuilt some five years earlier and he did not see the need to go to the expense of having the matters looked at.

In order to find this breach, I must be satisfied that there had been a formal request to remedy such matters or specific requests with reminders sent in a way that could be deemed a 14 day notice with the landlord simply refusing to fix issues. I am told that the property had a complete rebuild five years ago following a fire.

Neither party have provided me with the evidence to satisfy me on the balance of probabilities that Mr Diack has breached his duty to maintain the property. Therefore, the claim is dismissed. C) DID MR DIACK INTERFERE WITH MS ROWSELL’S PEACE?

Ms Rowsell claims that the landlord has harassed her.

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 landlord cut the power to the property. I am told for three days, Mr Diack says it was for two hours. The police were involved, and I am told the water was cold for some time. Mr Diack accepted that he turned off the power because he said the power account had not been paid. Ms Rowsell disputed this saying she had made a payment.

The amount of time it was turned off for is unproven, however Mr Diack accepts he did turn it off and this is unacceptable behaviour of a landlord.

The evidence in relation to the power account and what was owed was in the form of handwritten notes written on the back of an old used envelope and another on note paper. This was undated and frankly made no sense and was not reliable evidence . Neither party could follow what was said to be paid and what was paid at that time. In any event, Mr Diack stated that $10 was short in the payment that had been made, so he disconnected the power.

One such text received by Ms Rowsell stated: “If you text me and ask me nicely to come to the door and ask nicely and promise to stop this crap I may leave the power on until Monday”

Whilst Mr Diack states he never swore, in one text message he states and I quote directly, ” I gwell stop your ffff uuu ccc money and I will” in response to a text sent by Ms Rowsell asking him to leave her in peace. I accept this is and could be interpreted as swearing and unacceptable language to be used between a landlord and tenant.

I was also given evidence of the exchanges where Mr Diack gave a ‘fortnights’ notice for “her to get out” there were threats that her property would be packed up and put in the shed. Just days prior to coming to the Tribunal Ms Rowsell asked for her belongings to be collected by a storage company and stored out of fear that she would come home to her belongings being packed into the shed.

The relationship had broken down. It was clear that the tenancy needed to come to an end. Ms Rowsell agreed to vacate at 5pm on 4 th July 2025. Having spoken to the parties this means that as of the day of hearing, 23 June 2025, no further rent is due and owing. This takes into consideration the rent in advance that was paid.

I felt it necessary to confirm and record the situation in relation to the rent payments and in relation to the power as discussed at the hearing, this should assist the parties. The power I find, based on the evidence is paid up until the 31 May 2025. Ms Roswell is still required to make payment of the power from 1 June until 4 th July 2025.

Both parties to a tenancy arrangement have obligations, clearly Mr Diack did not appreciate the needs to comply with the landlords’ obligations under the Residential Tenancy Act. He stated he has a number of other boarding situations where he has tenancy agreements. I am concerned at this evidence however, I urge him, if he is going to be in the business of renting premises, he must understand his obligations to avoid this situation re occurring.

Having considered all of the evidence submitted, a breach of the tenants right to reasonable peace, comfort, or privacy in the use of the premises has occurred and I make an award accordingly.

Included in this finding, is the evidence that Mr Diack sent Ms Rowsell a text ending the tenancy in what he calculated at the hearing was at the time, ‘in a fortnights time’. Ms Rowsell did not directly raise a claim that the notice was unlawful/retaliatory. However, the effect of receiving this text message caused distress and such notice does not follow the correct procedure under the Residential Tenancies Act. A landlord has no right to terminate the tenancy in this way.

I indicated to the parties that I would have deemed this notice to have been retaliatory based on the evidence had that been raised as a claim. At the commencement of the hearing Ms Roswell wanted to remain at the property until she found alternative accommodation. However, I have considered Mr Diack’s actions in determining the financial award for a breach of Section 38(2), the breach of quiet enjoyment. The statements he made in relation to taking her belongings was further evidence in support of that breach also.

As Ms Roswell agreed to end the tenancy, I am not required to deem the notice invalid.

Ms Roswell claims a refund of the filing fee. I am not granting that today. She was not wholly or largely successful in her claim as per the legislation. Again, I encourage both parties to obtain advice in relation to the Residential Tenancies Act to help them both going forward.

Order

Claims and awards in Tenancy Tribunal application 5267779. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
interfering with her reasonable peace, comfort, or privacy in her use of the premises. 5. Mr Diack shall refund the bond	$300.00		interfering with her reasonable peace, comfort, or privacy in her use of the premises. 5. Mr Diack shall refund the bond

The tenancy of Anne Elizabeth Rowsell will terminate at 5pm on 4 th July 2025.

Power has been paid up until 31 May 2025 and no arrears remain up to that date.

Anne Elizabeth Rowsell will pay outstanding power from 1 June until 4 th July 2025 when it is due and owing.

Stanley Allan Diack must pay Anne Elizabeth Rowsell $750.00 immediately for interfering with her reasonable peace, comfort, or privacy in her use of the premises.

Mr Diack shall refund the bond of $300.00 at the end of the tenancy if no further issues arise with the exit inspection.

Reasons

Both parties attended the hearing.

BACKGROUND

The first issue for me to determine is whether this was a ‘boarding house’. Mr Diack believed the arrangement was a boarding situation and he referred to both terms throughout the hearing.

The parties never signed any agreement, boarding, room sharing or otherwise. Mr Diack stating that was because Ms Rowsell was a ‘boarder’, and it was a ‘boarding house arrangement.’

There were no common areas that the landlord and tenant shared.

Therefore, I do not accept on the evidence that this is a boarding house.

I now turn my mind to whether Ms Rowell was boarding rather than a tenant given she occupied part of the landlord’s premises.

The higher courts have confirmed that a ‘premises’ in terms of the Residential Tenancies Act may be part of a larger premises. Kahi v Lucas HC Auckland HC81/96, 23 September 1996.

ACT 1986?

Ms Rowsell claims that Mr Diack has breached his obligations under section 45 of the Residential Tenancies Act 1986.

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

Breaching any of these 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.

Ms Rowsell claims that she asked on many occasions for Mr Diack to fix a toilet seat that kept moving, to clean out the water tanks, to have the TV arial looked at and hot water cylinder checked.

Ms Rowsell claims that the landlord has harassed her.

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.

The amount of time it was turned off for is unproven, however Mr Diack accepts he did turn it off and this is unacceptable behaviour of a landlord.

One such text received by Ms Rowsell stated: “If you text me and ask me nicely to come to the door and ask nicely and promise to stop this crap I may leave the power on until Monday”

Having considered all of the evidence submitted, a breach of the tenants right to reasonable peace, comfort, or privacy in the use of the premises has occurred and I make an award accordingly.

As Ms Roswell agreed to end the tenancy, I am not required to deem the notice invalid.

Tenancy Tribunal case 5267779 — 14-day notice at 148A McMillan Street, Tisbury, 11, Invercargill 9877

At a glance

Tenancy Tribunal case 5267779 — 14-day notice at 148A McMillan Street, Tisbury, 11, Invercargill 9877

At a glance

Claims & awards

Order

Reasons

BACKGROUND

ACT 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

ACT 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions