Published tribunal order
Tenancy Tribunal case 5294380 — Exemplary damages at [Address]
Decided 26 Sept 2025 · Published 26 Sept 2025 · Application 5294380
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the [Tenant] name and identifying details.
- Kāinga Ora–Homes And Communities to pay [Tenant] $3,000.00 in exemplary damages (s 38(2)) immediately.
- Kāinga Ora–Homes And Communities to pay [Tenant]morr $1,500.00 in general damages immediately.
- I direct the parties to Mediation, by consent.
Reasons
- Both parties attended the hearing.
- The premises at form part of a small housing complex of three units (16, 16A, and 16B) situated on a single parcel of land. Access to each unit is via a shared driveway running from the street frontage past number 16 to the rear units. The issue in dispute concerns frequent obstruction of this shared driveway by vehicles visiting number 16, which has impeded the Tenant’s ability to enter and exit his property and has been accompanied by late-night noise and disturbance.
- The Tenant claims that the Landlord has permitted ongoing obstruction of a shared driveway, by visitors to the premises. At times, the Tenant has let frightened to leave his home, because some visitors are rowdy and intimidating.
- 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 (RTA).
- The landlord must also take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits such interference. See correlative s 45(1)(e) 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. Findings on Facts and Evidence
- I find that since at least 2023 the Tenant has been repeatedly obstructed from freely using the shared driveway due to vehicles associated with the occupants and visitors at number 16. The Tenant has produced extensive photographic evidence covering 2023–2025, with repeated driveway obstructions in August 2025.
- I have not yet received the Tenant’s video evidence, but I do not need to view it, and I am satisfied there has been repeated obstructions and behaviour which has required action by the Landlord so as to comply with its positive obligations under ss 45(1)(e) and 38(2).
- The evidence I have received – both photographs and the Tenant’s written and oral evidence – show repeated obstruction at all hours, sometimes accompanied by noise, loud music, and gatherings immediately adjacent to the Tenant’s property. The Tenant gave evidence of an individual who had parked his vehicle in the shared driveway and had retrieved and put on gang regalia.
- The Tenant has raised concerns formally on several occasions. Two 14-day notices to remedy were issued and multiple meetings were convened with the Landlord. The Tenant’s representative indicates the Landlord was dismissive of the Tenant’s evidence and concerns at a recent meeting and expressed the view that the Landlord was simply not listening. (I acknowledge the courage and determination it must have taken the Tenant to confront the neighbour about her visitors and capture and preserve evidence of the obstructions and intimidating behaviour he witnessed.)
- The Landlord acknowledges that the driveway has at times been obstructed but had little or no recollection or reliable record of the number of times it had been obstructed. The Landlord accepts its signage and reminder letters have not resolved the problem, and that more could have been, and must be, done to recognise and address the issue.
- The Landlord submits, however, that fair use of the driveway must allow for some disruption given the intensity of the development (three homes on a relatively small parcel). I accept that submission, to an extent. Discussion
- Although the tenant relies on sections 297–298 and Schedule 5 of the Property Law Act 2007, those provisions do not strictly apply here because there is no registered easement or access lot 1 on the title. I checked the Title with the parties and confirmed this from the very outset.
- Section 297(1) provides that “every grant of a vehicular right of way contains the implied covenants in Schedule 5”, while section 298(2)–(3) extends the same rights to proprietors of an “access lot that is or includes a driveway”.
- Both sections presuppose the existence of a formal grant or access lot arrangement. In the absence of such an instrument, the Tribunal cannot apply the implied covenants directly.
- However, the standard expressed in Schedule 5(2)(c) – that the land must “at all times [be] kept clear of obstructions, whether caused by parked vehicles, deposit of materials, or unreasonable impediment to the use and enjoyment of the driveway” – is consistent with, and informative of, the landlord’s duty under s 38(2) and s 45(1)(e) of the Residential Tenancies Act 1986 to ensure that tenants enjoy unobstructed and peaceful use of their premises.
- The Tribunal accepts that some temporary inconvenience is inherent in shared living arrangements. These duties must be interpreted in light of the way the land has been developed: three dwellings on a single parcel reliant on one accessway, where fair use of the driveway will necessarily involve some reasonable curtailment of access.
- However, the evidence here shows more than minor or occasional inconvenience. The obstruction has been persistent and disruptive, extending over two years, and accompanied by noise and disturbances at all hours. What is more, the tenant at number 16 has not been adhering to the rules set by the Landlord, and the Landlord has not been properly policing those rules.
- The Tenant’s representative referred me to comparable cases, 2 where the Tribunal has held that landlords must do more than issue reminder notices when 1 Access lot, in sections 298 and 315 (of the Property Law Act 2007) and in relation to a subdivision, means a separate allotment—in the subdivision; and (b) that was created to provide access—(i) from all or any of the other allotments of the subdivision; and (ii) to an existing road or street. 2 Tenant v Landlord [2025] NZTT 5052870; Owen v Kāinga Ora [2024] NZTT 4980448. anti-social behaviour persists and should exercise available powers under s 55A or s 56 RTA.
- In this case, the Landlord did not escalate its response despite continuing breaches. Its approach was effectively hands-off, leaving the Tenant exposed to daily obstruction and disturbance without meaningful protection.
- The persistent obstruction and disturbance amount to harassment. The Tenant has been worn down by repeated interference with his ability to access his home and to enjoy peace, quiet enjoyment, and security. Sometimes, he chooses not to take his dog for a walk because he has seen visitors arrive in the driveway and he prefers to avoid possible confrontation. I have reminded him to be be objective and balanced in his approach to appraising risk, for there are inherent risks in crossing roads and operating motor vehicles, but neither, on their own, should stop him from getting out and about.
- I am satisfied that the Landlord’s omission to act amounts to an unlawful act.
- Under s 109(3) RTA, exemplary damages may be awarded where just, having regard to the following elements: a. Intent (s 109(3)(a)): The Landlord did not set out to harass the Tenant, but knowingly allowed his neighbour to continue obstructing the driveway without corrective action, reflecting reckless disregard of the Tenant’s rights. b. Effect (s 109(3)(b)): The effect on the Tenant has been significant - stress, anxiety, frustration, and a reduced sense of safety. c. Interests (s 109(3)(c)): The Tenant is entitled to quiet enjoyment and reliable access. These interests have been undermined. d. Public interest (s 109(3)(d)): It is important that landlords, especially institutional landlords, use the statutory procedures available to them, to address ongoing anti-social behaviour (see. s 55, 55A and 56).
- Having regard to these factors, exemplary damages are justified. Given the persistence of the problem over more than two years, I find $3,000 is appropriate. General Damages, Mediation and Name Suppression
- General damages recognise the stress, inconvenience, and frustration caused by the Landlord’s inaction. The Tenant’s affidavit evidences ongoing anxiety and diminished peace of mind. I award $1,500 as claimed.
- By consent, I direct the parties to Mediation to find a permanent solution.
- The Tenant has wholly succeeded in his claim, and I grant him name suppression.