What was Tenancy Tribunal case 5284741 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 5284741?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5284741?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5284741?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12295656-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5284741 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 5284741?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5284741?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5284741?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12295656-Tribunal_Order_Redacted.pdf.

Unit/Flat 5, 316 Panama Road, Mount Wellington, Auckland Tenancy Tribunal Case 5284741 — Harassment

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants name and identifying details.
The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 5, 316 Panama Road, Mount Wellington, Auckland 1062 is reduced and is to end on or before
59pm on Monday 29 th September 2025. The tenants must pay the rent to the landlord until the end of the tenancy. The tenants are to give the landlord a minimum of 7 days’ notice of the end of the tenancy.
The bond is to be refunded to the tenants immediately.
The landlord is not permitted to claim a break lease fee or a top up on the reduced rental until May 2026 from the tenants, due to the misrepresentation made that induced the tenants to enter into this fixed term tenancy.

Reasons

Both parties attended the hearing.
This is a tenant application seeking to reduce a fixed term tenancy, refund of bond, filing fee and compensation. Background:
The tenants were relocating to Auckland from Christchurch where they had been living for two years. The Applicants have immigrated from South Africa two years ago.
The tenants had no knowledge of Auckland and its suburbs. They have no friends or family in Auckland to assist them with knowledge of suburbs nor to do viewings of potential rental properties for them. As a result, they said they relied heavily on the information given to them from the property manager about the area.
The tenants have a young daughter who on occasions needs to walk to and from school by herself.
The Trade Me advertisement for the rental property they entered into a fixed term tenancy for was described, amongst other things, as being a luxurious Riverside Retreat, and as a luxurious escape with breathtaking views of the Tamaki River. Furthermore, that the property was an exclusive rental opportunity you won’t want to miss and that this was a peaceful and charming neighbourhood.
The tenants said they talked to the property manager, and he said that he did not know about the schools in the area but that he did not know of issues in the area. The tenants believe that the landlord was either negligence or deliberately failed to disclose material information about the neighbourhood, that a reasonable tenant would consider critical to their decision before renting a property there.
Since the tenants have moved into the property, they have become very stressed about the local environment they are living in. Their direct neighbours that they share a wall with have loud music playing regularly. They have been over to ask them to turn down the music and called noise control several times. The tenants say the neighbour was threatening to them when they complained about the music last weekend.
One of the other neighbouring units in the complex has someone living there on electronically monitored bail or a sentence, as they are wearing an ankle bracelet.
The police are constantly monitoring the neighbour and the tenants showed the Tribunal a 4-minute video with multiple police cars staked out in their street. There is a well-known Black Power house clearly marked and identifiable a few hundred meters away from their home. The area has roaming unsupervised dogs.
The tenants provided records of their doctor’s visits, medication prescribed, news articles about recent crimes in the area, a snapshot from the New Zealand Police database statistics of crimes committed in the area over the last 12 months, photo of the Black Power house and recordings of noise control reports.
This is a low socioeconomic area with a high visibility of gangs residing in the direct neighbourhood. It is not what an “ordinary reasonable” person would consider to be a peaceful and charming neighbourhood.
The tenants expressed that they would never have signed a lease had they known of the lack of safety and ongoing community issues in this area.
The tenants seek to terminate their fixed term tenancy, have their bond refunded immediately, seek moving costs of $450.00, refund two weeks rental and compensation for their lost income, stress and trauma and medical bills. Burden and standard of proof
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities.” The 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 likely.
This obligation carried by the applicant is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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 3 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 relevant Law:
The Residential Tenancies Act 1986 (“RTA”), is the law that regulates the relationship between landlords and tenants, establishing a framework for rental agreements and outlined the rights and responsibilities of both parties.
S78 RTA refers to orders that the Tribunal can make such as a declaration, termination of a tenancy, money compensation, work orders, determine whether an agreement or any term of an agreement is harsh and unconscionable. Furthermore s78 (1) ( g) refers to agreements between the parties that have been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying , or setting aside, the agreement or the writing.
S78 (1)(h) allows the Tribunal to make any order that the High Court or District Court may make under any enactment or rule of law relating to contracts.
Section 37 of the Contract and Commercial law Act 2017 (“CCLA”) deals with the cancellation of contracts. It allows a party to cancel a contract if they were induced to enter into it by a misrepresentation or if the terms of the contract are breached or if a breach is clearly going to occur.
Under s37(2) CCLA to cancel a contract for misrepresentation the party must prove that the misrepresentation was essential or that the breach or misrepresentation has a substantial effect on the contract. This means that the breach or misrepresentation must significantly alter the benefits or burdens of the contract for the party seeking to cancel the contract.
I find the landlords description of the property in the advertisement, such as “luxurious riverside retreat,” and the statement that this was a “peaceful and charming neighbourhood” to be misrepresentations.
The tenants had expressed to the property manager that safety is paramount to them as they were recent immigrants from South Africa and had experienced disturbing encounters back there. Their 10-year-old daughter was on occasion required to walk alone to school but would have to walk past a gang house and deal with roaming dogs.
Since moving into this property, they have all experienced serious health and psychological issues requiring medical visits and medication.
At the hearing, the landlord said that his information about the actual complex was based on information he received from other neighbours. He considers that the area was “generally safe” and was unaware of the person on an electronic bail/sentence until the tenants complained about it. The landlord says that the description given of the property and neighbourhood was “mere puffery.” In law, “mere puffery” refers to exaggerated or boastful statements made in advertisements that a reasonable person would not take seriously. I do not consider the statements made in the advertisement were mere puffery.
The parties discussed breaking the fixed term tenancy. The landlord has been actively advertising the property. It is telling that at the time of the hearing there had been 14 viewings of the property and no actual applications made to rent it, despite the rental being reduced by $30.00 per week.
To end the fixed term tenancy the landlord expects the tenants to pay the break lease fee and pay the top up of $30.00 per week until May 2026, and pay full rent until a new tenant is found.
I find that there has been a misrepresentation of the facts. It is of significance that immediately after the hearing the landlord removed from the trade me advertisement all the representations that I questioned them on.
I do not consider the landlord opinion that the area is generally safe to be a statement of opinion. Regardless the tenants considered it as a statement of fact, namely that the opinion was honestly held (by the landlord) or it was based on facts to justify that opinion. The tenants made it clear they relied on the landlord opinions and statements, and this was what enticed them into entering into the fixed term tenancy.
Under s37 (2) CCLA the fixed term contract is cancelled for misrepresentation. The misrepresentation was to the safety and “peacefulness” of the direct neighbourhood. The misrepresentation was fundamental to the contract. The effect of the misrepresentation has been to substantially reduce the benefit or make the benefit of the burden of the contract, substantially different than what they contracted for. The tenants say there is a clear mismatch of what was offered in the advertisement and the reality of the neighbourhood.
The tenants want to leave the property immediately but do not have any other accommodation arranged. They require their bond to be refunded to allow them to use for their new property.
I am terminating the fixed term tenancy immediately with an end date of Monday 29 September 2025; however, the tenants may leave before that time if they have found a new property to move to. The tenant must give the landlord a minimum of 7 days’ notice to end the tenancy. The tenants are to pay the weekly rent to the landlord until the end of their tenancy.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986. However, in these circumstances and the finding of misrepresentation, I am not awarding compensation to the landlord for any resulting losses. For completeness, the landlord is not permitted to charge the tenants a break lease fee nor a top up of $30.00 per week until May 2026 for the reduced rental. Refund of the bond:
The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
Section 22B (2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant. Tenants’ claims of compensation:
The tenants seek moving costs, 2 weeks rental, compensation for stress, loss of income and medical bills.
I cannot award medical bills or prescription costs as I consider the connection between the landlord’s breach and the expenses claimed are too remote.
The Tribunal’s jurisdiction is primarily focused on resolving disputes related to tenancy agreements and property maintenance.
Furthermore, the moving costs and loss of income are a natural consequence of moving homes, whether that be in one months’ time or two years.
I am not awarding 2 weeks rent as compensation as I consider both parties have suffered loss as a result of this tenancy.
Similarly, I am not awarding compensation for stress.
When considering all factors relating to an award for compensation other than financial losses or exemplary damages for unlawful acts, I must look at the severity of the harm caused, the impact it has had on the tenants and the specific circumstances relating to this case.
In this case I am not awarding any compensation to the tenants. The Tenancy Tribunal can award compensation to a landlord for termination of a fixed term tenancy, but I have declined to do that given my findings of misrepresentation.
I consider both parties should each bare some of the consequences of the termination of this fixed term tenancy. Bond/Filing fee/suppression:
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.
The tenants have applied for suppression of their name and identifying details and as they have been successful, I am granting suppression.
The Bond Centre is to refund the bond to the Tenants immediately.

Tenancy Tribunal case 5284741 — Harassment at Unit/Flat 5, 316 Panama Road, Mount Wellington, Auckland

At a glance

Tenancy Tribunal case 5284741 — Harassment at Unit/Flat 5, 316 Panama Road, Mount Wellington, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions