What was Tenancy Tribunal case 5279780 about?

The tribunal order states: This amends the order dated 16 September 2025 by correcting the amounts

How much money was awarded in case 5279780?

Compensation: Breach of quiet enjoym…: $1,300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5279780?

The dispute type was not classified.

Where can I read the official tribunal order for case 5279780?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12422374-Tribunal_Order.pdf.

What was Tenancy Tribunal case 5279780 about?

The tribunal order states: This amends the order dated 16 September 2025 by correcting the amounts

How much money was awarded in case 5279780?

Compensation: Breach of quiet enjoym…: $1,300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5279780?

The dispute type was not classified.

Where can I read the official tribunal order for case 5279780?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12422374-Tribunal_Order.pdf.

6A Te Whiti Street, Kilbirnie, Wellington 6022 Tenancy Tribunal Case 5279780 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5279780 — net $1,327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of quiet enjoyment	$1,300.00	Breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,327.00
Total payable by Landlord to Tenant	$1,327.00

Order

This amends the order dated 16 September 2025 by correcting the amounts ordered. The decision is otherwise the same.
No suppression orders are made by the Tribunal.
Penney-Burrage Enterprises Limited must pay Tyler Jesse Poysden and Maia Rose Hewer the sum of $1,327.00 immediately, calculated as shown in the table below.
All other claims are dismissed.

Reasons

Both parties attended the hearing with Stephen Burrage and Barbara Penney representing the landlord.
This is the tenants’ application for compensation and exemplary damages with regard to the following claims: a. Failure by the landlord to advise the tenants in writing of placing the premises on the market for sale; b. Misrepresentation by the landlord to induce the tenants to enter the tenancy; c. Breaching the tenants’ quiet enjoyment when preparing and marketing the premises for sale. The tenants case
The tenants, Ms Poysden and Ms Hewer viewed the premises on 30 March 2025 which were advertised and offered as a periodic tenancy. At the viewing the tenants advised Mr Burrage and Ms Penney that they were seeking a long- term stable rental. The landlords advised them not to be put off by the periodic tenancy on offer as this was not indicative of a short-term tenancy preference and was standard. The periodic tenancy agreement was then signed on 4 April 2025 and the tenancy commenced on 3 May 2025.
On 2 May 2025, the tenants attended the premises to complete the pre-tenancy inspection with the landlord and collect the keys. At this meeting, Mr Burrage advised them verbally that the landlords had made a recent decision to sell the premises. The premises were intended to be sold subject to the tenancy.
The tenants claim the landlords misrepresented the tenancy on offer by failing to disclose their intention to sell the premises. They believe that the landlords had decided to sell the premises prior to their signing the tenancy agreement. In support of this they produced evidence from the estate agent confirming that marketing photos of the premises were taken before the tenancy started and an email statement from the tenant in the front flat, who says that the landlords had advised her many months earlier that they might sell the premises. The tenants believe the landlords deliberately withheld this information because selling the property (comprising of two separate flats) subject to tenancies was likely more financially attractive to a prospective buyer.
The tenants say that they would not have taken the tenancy had they known of an intention to sell as they were concerned to ensure a long-term stable tenancy without disruption.
Once the tenancy started, the tenants complain that they endured multiple breaches of their quiet enjoyment due to the landlord and their agents accessing the premises to carry out various works in preparation for sale and because of several open homes and private viewings.
After 8 weeks, the tenants gave notice to terminate the tenancy with effect on 20 July 2025. In the meantime, by the end of June 2025, the landlords obtained an unconditional contract for sale and purchase of the property settled shortly after the tenancy ended. The landlords’ case
The landlords say that they did not make their decision to sell until just before this tenancy started, so could not have advised the tenants any sooner and certainly not before the tenancy agreement was signed. Initially, they intended to sell another rental property. However, after a discussion with their son about financial models they decided on or about 29 April to sell this property. Because the decision was only made just before this tenancy was to start, they quickly made arrangements to stage the premises and have them photographed on 2 May, the day before the tenancy started. They signed the agency agreement with the real estate company instructed to act on 1 May. They provided evidence to support the date of their decision and subsequent actions including various communications with the agent and the agency agreement..
The landlords confirm that they advised the front flat tenant about an intention to sell the premises in October 2023. However, they later changed their minds and advised the tenant by email dated 12 November 2023 (produced in evidence) that they would not be selling the property in the near future.

Did the landlord give the required notice regarding sale of the premises?

The tenants claim that the landlord has breached their obligations under section 47 of the Residential Tenancies Act 1986 (RTA).
Section 47 provides: (1) If, at any time after entering into a tenancy agreement, the landlord puts the premises on the market for the purposes of sale or other disposition, the landlord must, as soon as practicable, give written notice of that fact to the tenant. (2) When a landlord is offering residential premises as available for letting, the landlord shall inform prospective tenants if the premises are on the market for the purposes of sale or other disposition.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1800.00 See section 47(3) and Schedule 1A RTA.
The tenants claim that the landlord has breached s47 in two respects. First, the landlord failed to notify them of the proposed sale when offering the tenancy. Alternatively, while the landlord gave verbal notice of the intended sale on 2 May, they did not provide a written notice that the premises were on the market for sale until 28 May and only after the tenants request that they do so.
I find on the evidence that the landlords decision to place the premises on the market for sale was only made on 29 April and they signed the agreement appointing real estate agents on 1 May. Therefore, they could not have notified the tenants of a sale before the tenancy agreement was signed.
The landlord then embarked on a pre-sale program of works to ready the property for sale including washing the house, gardening, some painting work, re-roofing the exterior shed; arranging a building inspection report for prospective purchasers; arranging for a videographer to prepare a marketing video, and so on. The premises were then put on the market for sale on 27 May. This is the date that a For Sale sign was erected outside and online advertising commenced with the first open home scheduled on 1 June.
I find in effect that the premises were only “put on the market for sale” on 27 May and written notice was given the next day which is reasonable. Even, if I am wrong, I consider the tenants were given notice of the intention to sell, although not in writing, as soon as practicable after the decision was made, such that a technical breach of s47 in the particular circumstances would not justify an award of exemplary damages. The claims regarding a breach of s47(1) or (2) are dismissed. Misrepresentation
The law regarding misrepresentation is now largely codified in sections 35 and 37 of the Contract and Commercial Law Act 2017 (CCLA), although the common law remains relevant. Under s35 CCLA, if a party (party A) to a contract has been induced to enter it by a misrepresentation, whether innocent or fraudulent, made by another party (part B) to the contract, party A is entitled to damages from that party B in the same manner and to the same extent as if the representation were a term of the contract that has been broken.
The representation must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past facts, including “half- truths”, not one which relates to the future. See the commentary in Gault on Commercial Law 1 and the Court of Appeal decision in Savill v NZI Finance Ltd. 2
The tenants say that they likely would not have taken the tenancy had they known of an intention to sell as they were concerned to ensure a long-term stable tenancy without disruption. 1 Gault on Commercial Law (online looseleaf ed, Thomson Reuters) 2 Savill v NZI Finance Ltd [1990] 3 NZLR 135
The tenancy was advertised as a periodic tenancy and the tenancy agreement signed by the parties was for a periodic tenancy. Therefore, there was no guarantee that the tenancy would last for a certain time period. It is a long- standing legal principle (the parol evidence rule) that a Court or Tribunal should not incorporate terms into an agreement which contradicts the parties’ written agreement unless there are exceptional reasons for doing so.
It would not be reasonable to suggest some obligation on the landlords to disclose a possible intention to sell held many months prior and nor are they required to do so under the RTA. S 47 RTA only requires the landlord to advise the tenants if they put the premises on the market for sale—not their intention to do so at some future point. I have accepted on the evidence that the landlords only decided to sell the premises approximately 4 weeks after the tenancy agreement was signed and a few days before the tenancy started. In any event, the sale of the property was subject to the tenancy. The landlords had no intention of ending the tenancy to provide vacant possession for prospective purchasers. Therefore, the length of the tenancy was not materially prejudiced by the proposed sale.
In summary, I am not satisfied that the tenants have established there was an oral agreement with respect to the duration of the tenancy. I find that this was a periodic tenancy able to be terminated by either party giving the required notice. Furthermore, the proposed sale was subject to the tenancy so it did not change the length of the tenancy. Therefore, I find that there was no misrepresentation. Did the landlords breach the tenants’ quiet enjoyment? The law
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. The word “premises” in s38 includes facilities such as exterior sheds, lawns, and gardens.
Breaching s38(2) 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". 3
The provisions regarding quiet enjoyment must be balanced against other provisions in the RTA. 3 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010
Sections 48(1)-(2B) RTA permits a landlord to enter the premises with the tenant’s consent or upon giving the required notice as specified in those sections. However, the definition of “premises” for the purposes of s48 does not include facilities such as the exterior grounds. So, a landlord is not required to give notice under s48 to access facilities.
Notably, in this case the tenancy agreement provides that the landlord is responsible for ensuring the grounds are kept in a reasonably tidy condition. Therefore, there was an explicit agreement that the landlord would attend the exterior grounds to complete lawns and gardening.
Section 48(3)(a)-(f) RTA also allows landlords with the prior consent of the tenant to access the premises at any reasonable time for the purpose of showing the premises to their advisers and prospective purchasers. As there will commonly be multiple prospective purchasers, Parliament must have envisaged a landlord having reasonably frequent access for the purposes of sale. However, the RTA does not require the landlord to give tenants a particular period of notice before the property is accessed (as required by s48(2), for example). Only reasonable notice is required. While a tenant may impose reasonable conditions on access, they must not withhold consent unreasonably. A tenant commits an unlawful act if they fail to permit the landlord access under s48(3) without a reasonable excuse. See ss 48(3A) and (4) RTA.
In summary, the tenants’ rights under s38 must be balanced against the landlord’s rights to access under s48. While s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance, renovations, and hold open homes/viewings) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
A landlord is entitled to show the property to prospective purchasers which is, by its very nature, an intrusion on the tenant’s right to quiet enjoyment. While s48 makes it clear that the landlord is not in breach of the RTA for requesting entry to show the property to prospective purchasers, it becomes a question of fact and degree in each case as to whether the manner in which the property is marketed becomes an unreasonable interference in breach of s38(2). Similarly, a landlord is not required to give notice under s48 to access the exterior grounds, but it is a question of fact and degree as to whether visits are so frequent that they become an unreasonable interference under s38(2) which covers the right to quiet enjoyment of the premises including the exterior grounds. The landlord’s rights to carry out maintenance and hold open homes/viewings can quickly breach reasonable peace, comfort, and privacy if they are not well managed. Evidence and claims
The tenants claim the landlord breached their quiet enjoyment in the use of the premises and that this amounted to harassment. The allegations are summarised as follows: a. Between 3-26 May, the landlord and contractors accessed the exterior of the premises to complete work to ready the premises for sale including gardening and lawns; washing the house and exterior windows; painting fences and re-touching paintwork on the exterior windows; re-roofing the exterior shed; rust treating and repainting window flashings; b. Access was granted for a videographer and scriptwriter to prepare materials for the sales campaign; c. Access was granted for a building inspector to provide a report for prospective purchasers; d. Open homes and private viewings occurred between 1-25 June; e. Numerous communications occurred between the tenants and the landlords and the estate agents regarding the sale, with the tenants finding some of the communications designed to bully or pressure them into agreeing to the requests for access; f. The tenants installed security cameras and produced footage which they allege shows instances of Mr Burrage “peering” into their flat when attending to exterior maintenance; g. After withdrawing permission for open homes, the tenants allege that visitors attending open homes for the front flat entered the exterior grounds behind their flat and peered into the premises with nothing done by the real estate agent to manage this, as shown in some footage caught on their security cameras. This occurred on 8 and 22 June; h. The tenants agreed to several private viewings; i. Some of the exterior maintenance visits by Mr Burrage were not notified. Mr Burrage says he notified verbally but the tenants deny this was the case.
There were some particular incidents that the tenants complain about. On 29 May, Mr Burrage accompanied the Building inspector on site despite the tenants asking him not to do so. The landlord explained they thought it was necessary for health and safety purposes should the inspector wish to access the ceiling cavity.
The tenants gave permission for a contractor to visit for the purpose of assessing some pre-tenancy carpet damage and how it could be repaired. They insisted that the contractor attend without the landlords but complain that Ms Penney was present, although she did not come inside the premises. The landlords explained that they had not used this contractor before and believed that it was important for them to attend to discuss any proposed solution. However, to avoid conflict with the tenants, Ms Penney says she remained outside in her car.
Tenders for the premises closed on 12 June. However, the landlord did not receive any acceptable offers and met with their agent to discuss the next steps including further open home dates. The landlords then emailed the tenants with the dates for approval. Unfortunately and unbeknown to the landlords, their agents advertised the open home dates online about 2 hours before the landlords emailed the tenants. The tenants say this is an example of the landlord acting without obtaining the tenant’s consent. I accept that this was an error but subsequent open homes and private viewings proceeded with the tenants’ consent on alternative dates.
The evidence shows that after the tenants moved in on 3 May 2025, access to the property either by the landlord or their contractors/agents to ready the premises for sale occurred on 4, 5, 7, 10, 11, 12, 13, 14, 20, 21, 22, 29, and 31 May (13 visits in May). Open homes, private viewings, access for the carpet repair assessment and continued gardening/lawns occurred on 1, 5, 8, 12, 14, 15, 19, 22, 24, and 25 June (10 visits In June). This is a total of 23 visits in just under 8 weeks of the tenancy including 5 open homes/private viewings within the second 4 weeks of the tenancy. Discussion and findings
The breach of quiet enjoyment claim relates to two aspects: the pre-sales maintenance work and the sales and marketing campaign.
The District Court in Lucas v Paterson 4 held when it comes to landlords renovating or conducting extensive maintenance, tenants are required to put up with some degree of nuisance without compensation with the judge commenting “Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.” However, there are cases in contrast to Lucas v Paterson in which construction activity on or adjacent to premises has given rise to a breach 5 . In Lucas v Paterson and Marino & Ors v 4 Lucas v Paterson [2005] DCR 76 5 See Bali & Narayan v KA Management Ltd, TT 12/0185, Lower Hutt; Weatherall & Ors v Irvine, TT95/00175, Palmerston North; Stead v Walters & Mason, TT 96/01132, Christchurch; Cheer v Allen Wellington City Council 6 the District Court considered it was relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.
Cases in relation to marketing a rental property for sale have generally held that, other than in cases of well-managed, minimal interference, the tenant will be entitled to compensation for interference arising from open homes and viewings. For example in Gollop v Prakash 7 the property was put on the market 9 days after the tenancy began. The tenants were not advised this would happen. The landlord’s agent unlawfully entered the property for a viewing without consent. In addition, the landlord held 8 open homes in one month. One week’s rent as compensation was awarded. In contrast, the Tribunal in Rendall v Highet 8 considered that 6 open homes of 45 minutes each were a minimal inconvenience and that the tenants had agreed to them. No compensation was awarded.
After carefully considering all the available evidence presented by both parties, including their oral and written submissions, I find that the landlords interfered with the tenants’ reasonable peace, comfort, and privacy in the use of the premises which includes the exterior grounds. I find that the interference relates not so much to the open homes and private viewings that were arranged with the tenants’ consent but to the many other visits to ready the premises for sale. The tenants had no real opportunity to move into the property and “get settled” before the landlord embarked on a pre-sale maintenance works program which saw the landlord and/or their contractors agents visiting the property on a significantly frequent basis, sometimes several days in a row. The fact that the tenants did not know about the intended sale and/or the maintenance works program prior to entering the tenancy is an aggravating feature.
While the landlord’s responsibility under the tenancy agreement extended to “keeping the grounds in reasonably tidy condition,” the tasks carried in the first 4 weeks of the tenancy far exceeded what would usually and reasonably be expected to maintain the grounds. The landlords referred to this work in their written submissions as “all necessary preliminary work...to bring the property to market” which supports a finding that it was above and beyond work usually undertaken to keep the grounds reasonably tidy.
I am not persuaded that Mr Burrage “peered” in the windows when working outside. I find that the video footage does not support such a finding and only shows him walking past the window with a brief glance towards the window. Realty TT 96/01653, Auckland; Karmarkar v Patel DC, Auckland, CIV-2012-044-001460, 26 March 2013 6 Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013 7 Gollop v Prakash TT 12/01306, Manukau 8 Rendall v Highet TT1418/03, Christchurch
I am also not persuaded that the video footage produced shows prospective buyers in the backyard “peered” in the windows. Again, they seemed to look at the exterior building and any glance towards the windows was brief and incidental.
I also take into account, the landlord’s evidence, that the tenants opened the blinds and curtains so that the security cameras had a clear view, whereas they could have easily kept them shut during the open home times to protect their privacy if they felt it necessary.
I am also satisfied on the evidence that the backyard was for communal use of both flats and it would be reasonable to expect prospective buyers attending the front flat open homes to view the backyard area. The landlord also warned the tenants of this. In reaching this view, I take into account that the open homes were held on a few fixed dates and were of short duration.
In summary, I accept that there has been a breach by the landlords of the tenants’ right to quiet enjoyment of the premises, although not quite to the extent claimed by the tenants. The fact that the tenants had no prior knowledge before signing the tenancy agreement of the maintenance work to be carried out in the first month of the tenancy is an aggravating feature. The work resulted in a high frequency of visits to the premises to complete maintenance which was the main source of the intrusion. However, the open homes and private viewings are a breach of quiet enjoyment to a limited extent. The timing of the landlord’s decision to sell and the fact that the tenants had no prior knowledge of the sale before the tenancy agreement was signed and the tenancy started is also a material factor. After carefully considering all the circumstances and available evidence I award $1,300 compensation (two weeks’ rent) for the breach which I consider is reasonable and justified.
I am not satisfied that the landlords breach of quiet enjoyment amounts to harassment for which an award of exemplary damages may be considered. The timing of the decision to sell the property was unfortunate and meant that the tenants had no prior warning, but I am not persuaded that the landlords actions, were directed at the tenants specifically to annoy, tire, wear out or distress them.
Even if I am wrong, the Tribunal may only award exemplary damages where it is satisfied that the act was intentional and it would be just to award exemplary damages, 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) RTA. The landlords actions were mostly permitted by s48, and I accept on the evidence that the landlord mainly tried to work in with the tenants and give notice and/or obtain their consent as appropriate. I consider the matter of intention is not proved and exemplary damages are not justified.
As the tenants have substantially succeeded in the proceedings, they are entitled to reimbursement of the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5279780 — net $1,327.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of quiet enjoyment	$1,300.00	Breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,327.00
Total payable by Landlord to Tenant	$1,327.00

This amends the order dated 16 September 2025 by correcting the amounts ordered. The decision is otherwise the same.

No suppression orders are made by the Tribunal.

Penney-Burrage Enterprises Limited must pay Tyler Jesse Poysden and Maia Rose Hewer the sum of $1,327.00 immediately, calculated as shown in the table below.

All other claims are dismissed.

Reasons

Both parties attended the hearing with Stephen Burrage and Barbara Penney representing the landlord.

This is the tenants’ application for compensation and exemplary damages with regard to the following claims: a. Failure by the landlord to advise the tenants in writing of placing the premises on the market for sale; b. Misrepresentation by the landlord to induce the tenants to enter the tenancy; c. Breaching the tenants’ quiet enjoyment when preparing and marketing the premises for sale. The tenants case

The tenants, Ms Poysden and Ms Hewer viewed the premises on 30 March 2025 which were advertised and offered as a periodic tenancy. At the viewing the tenants advised Mr Burrage and Ms Penney that they were seeking a long- term stable rental. The landlords advised them not to be put off by the periodic tenancy on offer as this was not indicative of a short-term tenancy preference and was standard. The periodic tenancy agreement was then signed on 4 April 2025 and the tenancy commenced on 3 May 2025.

On 2 May 2025, the tenants attended the premises to complete the pre-tenancy inspection with the landlord and collect the keys. At this meeting, Mr Burrage advised them verbally that the landlords had made a recent decision to sell the premises. The premises were intended to be sold subject to the tenancy.

The tenants claim the landlords misrepresented the tenancy on offer by failing to disclose their intention to sell the premises. They believe that the landlords had decided to sell the premises prior to their signing the tenancy agreement. In support of this they produced evidence from the estate agent confirming that marketing photos of the premises were taken before the tenancy started and an email statement from the tenant in the front flat, who says that the landlords had advised her many months earlier that they might sell the premises. The tenants believe the landlords deliberately withheld this information because selling the property (comprising of two separate flats) subject to tenancies was likely more financially attractive to a prospective buyer.

The tenants say that they would not have taken the tenancy had they known of an intention to sell as they were concerned to ensure a long-term stable tenancy without disruption.

Once the tenancy started, the tenants complain that they endured multiple breaches of their quiet enjoyment due to the landlord and their agents accessing the premises to carry out various works in preparation for sale and because of several open homes and private viewings.

After 8 weeks, the tenants gave notice to terminate the tenancy with effect on 20 July 2025. In the meantime, by the end of June 2025, the landlords obtained an unconditional contract for sale and purchase of the property settled shortly after the tenancy ended. The landlords’ case

The landlords say that they did not make their decision to sell until just before this tenancy started, so could not have advised the tenants any sooner and certainly not before the tenancy agreement was signed. Initially, they intended to sell another rental property. However, after a discussion with their son about financial models they decided on or about 29 April to sell this property. Because the decision was only made just before this tenancy was to start, they quickly made arrangements to stage the premises and have them photographed on 2 May, the day before the tenancy started. They signed the agency agreement with the real estate company instructed to act on 1 May. They provided evidence to support the date of their decision and subsequent actions including various communications with the agent and the agency agreement..

The landlords confirm that they advised the front flat tenant about an intention to sell the premises in October 2023. However, they later changed their minds and advised the tenant by email dated 12 November 2023 (produced in evidence) that they would not be selling the property in the near future.

Did the landlord give the required notice regarding sale of the premises?

The tenants claim that the landlord has breached their obligations under section 47 of the Residential Tenancies Act 1986 (RTA).

Section 47 provides: (1) If, at any time after entering into a tenancy agreement, the landlord puts the premises on the market for the purposes of sale or other disposition, the landlord must, as soon as practicable, give written notice of that fact to the tenant. (2) When a landlord is offering residential premises as available for letting, the landlord shall inform prospective tenants if the premises are on the market for the purposes of sale or other disposition.

Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1800.00 See section 47(3) and Schedule 1A RTA.

The tenants claim that the landlord has breached s47 in two respects. First, the landlord failed to notify them of the proposed sale when offering the tenancy. Alternatively, while the landlord gave verbal notice of the intended sale on 2 May, they did not provide a written notice that the premises were on the market for sale until 28 May and only after the tenants request that they do so.

I find on the evidence that the landlords decision to place the premises on the market for sale was only made on 29 April and they signed the agreement appointing real estate agents on 1 May. Therefore, they could not have notified the tenants of a sale before the tenancy agreement was signed.

The landlord then embarked on a pre-sale program of works to ready the property for sale including washing the house, gardening, some painting work, re-roofing the exterior shed; arranging a building inspection report for prospective purchasers; arranging for a videographer to prepare a marketing video, and so on. The premises were then put on the market for sale on 27 May. This is the date that a For Sale sign was erected outside and online advertising commenced with the first open home scheduled on 1 June.

I find in effect that the premises were only “put on the market for sale” on 27 May and written notice was given the next day which is reasonable. Even, if I am wrong, I consider the tenants were given notice of the intention to sell, although not in writing, as soon as practicable after the decision was made, such that a technical breach of s47 in the particular circumstances would not justify an award of exemplary damages. The claims regarding a breach of s47(1) or (2) are dismissed. Misrepresentation

The law regarding misrepresentation is now largely codified in sections 35 and 37 of the Contract and Commercial Law Act 2017 (CCLA), although the common law remains relevant. Under s35 CCLA, if a party (party A) to a contract has been induced to enter it by a misrepresentation, whether innocent or fraudulent, made by another party (part B) to the contract, party A is entitled to damages from that party B in the same manner and to the same extent as if the representation were a term of the contract that has been broken.

The representation must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past facts, including “half- truths”, not one which relates to the future. See the commentary in Gault on Commercial Law 1 and the Court of Appeal decision in Savill v NZI Finance Ltd. 2

The tenants say that they likely would not have taken the tenancy had they known of an intention to sell as they were concerned to ensure a long-term stable tenancy without disruption. 1 Gault on Commercial Law (online looseleaf ed, Thomson Reuters) 2 Savill v NZI Finance Ltd [1990] 3 NZLR 135

The tenancy was advertised as a periodic tenancy and the tenancy agreement signed by the parties was for a periodic tenancy. Therefore, there was no guarantee that the tenancy would last for a certain time period. It is a long- standing legal principle (the parol evidence rule) that a Court or Tribunal should not incorporate terms into an agreement which contradicts the parties’ written agreement unless there are exceptional reasons for doing so.

It would not be reasonable to suggest some obligation on the landlords to disclose a possible intention to sell held many months prior and nor are they required to do so under the RTA. S 47 RTA only requires the landlord to advise the tenants if they put the premises on the market for sale—not their intention to do so at some future point. I have accepted on the evidence that the landlords only decided to sell the premises approximately 4 weeks after the tenancy agreement was signed and a few days before the tenancy started. In any event, the sale of the property was subject to the tenancy. The landlords had no intention of ending the tenancy to provide vacant possession for prospective purchasers. Therefore, the length of the tenancy was not materially prejudiced by the proposed sale.

In summary, I am not satisfied that the tenants have established there was an oral agreement with respect to the duration of the tenancy. I find that this was a periodic tenancy able to be terminated by either party giving the required notice. Furthermore, the proposed sale was subject to the tenancy so it did not change the length of the tenancy. Therefore, I find that there was no misrepresentation. Did the landlords breach the tenants’ quiet enjoyment? The law

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. The word “premises” in s38 includes facilities such as exterior sheds, lawns, and gardens.

Breaching s38(2) 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". 3

The provisions regarding quiet enjoyment must be balanced against other provisions in the RTA. 3 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010

Sections 48(1)-(2B) RTA permits a landlord to enter the premises with the tenant’s consent or upon giving the required notice as specified in those sections. However, the definition of “premises” for the purposes of s48 does not include facilities such as the exterior grounds. So, a landlord is not required to give notice under s48 to access facilities.

Notably, in this case the tenancy agreement provides that the landlord is responsible for ensuring the grounds are kept in a reasonably tidy condition. Therefore, there was an explicit agreement that the landlord would attend the exterior grounds to complete lawns and gardening.

Section 48(3)(a)-(f) RTA also allows landlords with the prior consent of the tenant to access the premises at any reasonable time for the purpose of showing the premises to their advisers and prospective purchasers. As there will commonly be multiple prospective purchasers, Parliament must have envisaged a landlord having reasonably frequent access for the purposes of sale. However, the RTA does not require the landlord to give tenants a particular period of notice before the property is accessed (as required by s48(2), for example). Only reasonable notice is required. While a tenant may impose reasonable conditions on access, they must not withhold consent unreasonably. A tenant commits an unlawful act if they fail to permit the landlord access under s48(3) without a reasonable excuse. See ss 48(3A) and (4) RTA.

In summary, the tenants’ rights under s38 must be balanced against the landlord’s rights to access under s48. While s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance, renovations, and hold open homes/viewings) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.

A landlord is entitled to show the property to prospective purchasers which is, by its very nature, an intrusion on the tenant’s right to quiet enjoyment. While s48 makes it clear that the landlord is not in breach of the RTA for requesting entry to show the property to prospective purchasers, it becomes a question of fact and degree in each case as to whether the manner in which the property is marketed becomes an unreasonable interference in breach of s38(2). Similarly, a landlord is not required to give notice under s48 to access the exterior grounds, but it is a question of fact and degree as to whether visits are so frequent that they become an unreasonable interference under s38(2) which covers the right to quiet enjoyment of the premises including the exterior grounds. The landlord’s rights to carry out maintenance and hold open homes/viewings can quickly breach reasonable peace, comfort, and privacy if they are not well managed. Evidence and claims

The tenants claim the landlord breached their quiet enjoyment in the use of the premises and that this amounted to harassment. The allegations are summarised as follows: a. Between 3-26 May, the landlord and contractors accessed the exterior of the premises to complete work to ready the premises for sale including gardening and lawns; washing the house and exterior windows; painting fences and re-touching paintwork on the exterior windows; re-roofing the exterior shed; rust treating and repainting window flashings; b. Access was granted for a videographer and scriptwriter to prepare materials for the sales campaign; c. Access was granted for a building inspector to provide a report for prospective purchasers; d. Open homes and private viewings occurred between 1-25 June; e. Numerous communications occurred between the tenants and the landlords and the estate agents regarding the sale, with the tenants finding some of the communications designed to bully or pressure them into agreeing to the requests for access; f. The tenants installed security cameras and produced footage which they allege shows instances of Mr Burrage “peering” into their flat when attending to exterior maintenance; g. After withdrawing permission for open homes, the tenants allege that visitors attending open homes for the front flat entered the exterior grounds behind their flat and peered into the premises with nothing done by the real estate agent to manage this, as shown in some footage caught on their security cameras. This occurred on 8 and 22 June; h. The tenants agreed to several private viewings; i. Some of the exterior maintenance visits by Mr Burrage were not notified. Mr Burrage says he notified verbally but the tenants deny this was the case.

There were some particular incidents that the tenants complain about. On 29 May, Mr Burrage accompanied the Building inspector on site despite the tenants asking him not to do so. The landlord explained they thought it was necessary for health and safety purposes should the inspector wish to access the ceiling cavity.

The tenants gave permission for a contractor to visit for the purpose of assessing some pre-tenancy carpet damage and how it could be repaired. They insisted that the contractor attend without the landlords but complain that Ms Penney was present, although she did not come inside the premises. The landlords explained that they had not used this contractor before and believed that it was important for them to attend to discuss any proposed solution. However, to avoid conflict with the tenants, Ms Penney says she remained outside in her car.

Tenders for the premises closed on 12 June. However, the landlord did not receive any acceptable offers and met with their agent to discuss the next steps including further open home dates. The landlords then emailed the tenants with the dates for approval. Unfortunately and unbeknown to the landlords, their agents advertised the open home dates online about 2 hours before the landlords emailed the tenants. The tenants say this is an example of the landlord acting without obtaining the tenant’s consent. I accept that this was an error but subsequent open homes and private viewings proceeded with the tenants’ consent on alternative dates.

The evidence shows that after the tenants moved in on 3 May 2025, access to the property either by the landlord or their contractors/agents to ready the premises for sale occurred on 4, 5, 7, 10, 11, 12, 13, 14, 20, 21, 22, 29, and 31 May (13 visits in May). Open homes, private viewings, access for the carpet repair assessment and continued gardening/lawns occurred on 1, 5, 8, 12, 14, 15, 19, 22, 24, and 25 June (10 visits In June). This is a total of 23 visits in just under 8 weeks of the tenancy including 5 open homes/private viewings within the second 4 weeks of the tenancy. Discussion and findings

The breach of quiet enjoyment claim relates to two aspects: the pre-sales maintenance work and the sales and marketing campaign.

The District Court in Lucas v Paterson 4 held when it comes to landlords renovating or conducting extensive maintenance, tenants are required to put up with some degree of nuisance without compensation with the judge commenting “Were every landlord who embarked on renovations to be in immediate jeopardy of quiet enjoyment breach, we would have an unworkable state of affairs. Proportionality must not be forgotten.” However, there are cases in contrast to Lucas v Paterson in which construction activity on or adjacent to premises has given rise to a breach 5 . In Lucas v Paterson and Marino & Ors v 4 Lucas v Paterson [2005] DCR 76 5 See Bali & Narayan v KA Management Ltd, TT 12/0185, Lower Hutt; Weatherall & Ors v Irvine, TT95/00175, Palmerston North; Stead v Walters & Mason, TT 96/01132, Christchurch; Cheer v Allen Wellington City Council 6 the District Court considered it was relevant in determining what was reasonable that the tenants had prior knowledge of the work that was going to take place.

Cases in relation to marketing a rental property for sale have generally held that, other than in cases of well-managed, minimal interference, the tenant will be entitled to compensation for interference arising from open homes and viewings. For example in Gollop v Prakash 7 the property was put on the market 9 days after the tenancy began. The tenants were not advised this would happen. The landlord’s agent unlawfully entered the property for a viewing without consent. In addition, the landlord held 8 open homes in one month. One week’s rent as compensation was awarded. In contrast, the Tribunal in Rendall v Highet 8 considered that 6 open homes of 45 minutes each were a minimal inconvenience and that the tenants had agreed to them. No compensation was awarded.

After carefully considering all the available evidence presented by both parties, including their oral and written submissions, I find that the landlords interfered with the tenants’ reasonable peace, comfort, and privacy in the use of the premises which includes the exterior grounds. I find that the interference relates not so much to the open homes and private viewings that were arranged with the tenants’ consent but to the many other visits to ready the premises for sale. The tenants had no real opportunity to move into the property and “get settled” before the landlord embarked on a pre-sale maintenance works program which saw the landlord and/or their contractors agents visiting the property on a significantly frequent basis, sometimes several days in a row. The fact that the tenants did not know about the intended sale and/or the maintenance works program prior to entering the tenancy is an aggravating feature.

While the landlord’s responsibility under the tenancy agreement extended to “keeping the grounds in reasonably tidy condition,” the tasks carried in the first 4 weeks of the tenancy far exceeded what would usually and reasonably be expected to maintain the grounds. The landlords referred to this work in their written submissions as “all necessary preliminary work...to bring the property to market” which supports a finding that it was above and beyond work usually undertaken to keep the grounds reasonably tidy.

I am not persuaded that Mr Burrage “peered” in the windows when working outside. I find that the video footage does not support such a finding and only shows him walking past the window with a brief glance towards the window. Realty TT 96/01653, Auckland; Karmarkar v Patel DC, Auckland, CIV-2012-044-001460, 26 March 2013 6 Marino & Ors v Wellington City Council DC, Wellington, CIV-2013-085-660,23 September 2013 7 Gollop v Prakash TT 12/01306, Manukau 8 Rendall v Highet TT1418/03, Christchurch

I am also not persuaded that the video footage produced shows prospective buyers in the backyard “peered” in the windows. Again, they seemed to look at the exterior building and any glance towards the windows was brief and incidental.

I also take into account, the landlord’s evidence, that the tenants opened the blinds and curtains so that the security cameras had a clear view, whereas they could have easily kept them shut during the open home times to protect their privacy if they felt it necessary.

I am also satisfied on the evidence that the backyard was for communal use of both flats and it would be reasonable to expect prospective buyers attending the front flat open homes to view the backyard area. The landlord also warned the tenants of this. In reaching this view, I take into account that the open homes were held on a few fixed dates and were of short duration.

In summary, I accept that there has been a breach by the landlords of the tenants’ right to quiet enjoyment of the premises, although not quite to the extent claimed by the tenants. The fact that the tenants had no prior knowledge before signing the tenancy agreement of the maintenance work to be carried out in the first month of the tenancy is an aggravating feature. The work resulted in a high frequency of visits to the premises to complete maintenance which was the main source of the intrusion. However, the open homes and private viewings are a breach of quiet enjoyment to a limited extent. The timing of the landlord’s decision to sell and the fact that the tenants had no prior knowledge of the sale before the tenancy agreement was signed and the tenancy started is also a material factor. After carefully considering all the circumstances and available evidence I award $1,300 compensation (two weeks’ rent) for the breach which I consider is reasonable and justified.

I am not satisfied that the landlords breach of quiet enjoyment amounts to harassment for which an award of exemplary damages may be considered. The timing of the decision to sell the property was unfortunate and meant that the tenants had no prior warning, but I am not persuaded that the landlords actions, were directed at the tenants specifically to annoy, tire, wear out or distress them.

Even if I am wrong, the Tribunal may only award exemplary damages where it is satisfied that the act was intentional and it would be just to award exemplary damages, 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) RTA. The landlords actions were mostly permitted by s48, and I accept on the evidence that the landlord mainly tried to work in with the tenants and give notice and/or obtain their consent as appropriate. I consider the matter of intention is not proved and exemplary damages are not justified.

As the tenants have substantially succeeded in the proceedings, they are entitled to reimbursement of the filing fee.

Tenancy Tribunal case 5279780 — Tenancy dispute at 6A Te Whiti Street, Kilbirnie, Wellington 6022

At a glance

Tenancy Tribunal case 5279780 — Tenancy dispute at 6A Te Whiti Street, Kilbirnie, Wellington 6022

At a glance

Tenancy Tribunal case 5279780 — Tenancy dispute at 6A Te Whiti Street, Kilbirnie, Wellington 6022

At a glance

Tenancy Tribunal case 5279780 — Tenancy dispute at 6A Te Whiti Street, Kilbirnie, Wellington 6022

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord give the required notice regarding sale of the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord give the required notice regarding sale of the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions