Published tribunal order
Tenancy Tribunal case 5356695 — Property damage at 42 Higgins Street, Marewa, Napier 4110
Decided 26 Mar 2026 · Published 26 Mar 2026 · Application 5356695
- Property damage
Order
- The landlord seeks a suppression Order. The landlord has been found to be in breach of his obligations. The grounds for suppression are not established. 1
- [The landlord/s] must pay [The tenant/s] $6,128.00 immediately, calculated as shown below:
Reasons
- Both parties attended the hearing. Each had support. 1 S.95A RTA Introduction
- A hearing was held on 14 January 2026 which the landlord attended by phone.
- I record that during the January hearing, an offer was made by the landlord to pay the tenant the compensation and exemplary damages claimed in her application. The tenant now prefers that the Tribunal assess her claims and decide whether any compensatory or punitive awards should be made.
- It is relevant that I note: a. the parties were given the chance to ask that I recuse myself from this hearing because I had been party to settlement discussions at the January hearing (neither asked that I do so); and b. the landlord’s settlement offer will not be taken into account in considering the tenant’s claims. Background
- At the hearing the tenant read (through her support person) a detailed chronology of events.
- The landlord was provided a written copy of that chronology and given time to consider it, to ensure he had fair opportunity to respond.
- The landlord confirms that no dispute is taken with that chronology, which I adopt as an accurate record of the relevant events. The Tenancy
- The landlord bought the property in late 2024. Settlement was 31 January 2025. It is not disputed that the landlord bought the property with the intention of subdividing it.
- The landlord advertised the property as available for rent through Facebook at a rent of $750.00 per week. The parties met at the property on 28 December 2024. It comprised a 4 bedroom dwelling, detached garage, 2 garden sheds and pergola on a 920 m 2 section.
- The landlord did not then disclose his intention to subdivide the property. The tenant’s evidence is that she specifically asked about the landlord’s intentions because she had relocated and wanted a long term tenancy. She was told by the landlord that he had no intentions to develop the property and wanted a long term reliable tenant.
- It was agreed that the tenant would take a tenancy of the premises. Rent was agreed at $730.00. The agreement allowed the tenant to have her dog.
- Once the tenant accepted the tenancy, the landlord requested that the bond be paid immediately, to protect his position. It was agreed that ½ would be paid then and the other ½ when the tenancy began. $2,230.00 was paid on 23 January 2025 and another $1,500.00 on 30 January 2025 totalling $3,000.00 for bond and $730.00 for the first week’s rent.
- The landlord told the tenant that the bond would be lodged with the Bond Centre. That never happened.
- The tenancy began when the landlord settled the purchase on 31 January 2025.
- The landlord brought a tenancy agreement to the tenant on 3 February 2025. The tenant signed it (backdated to 6 January at the landlord’s request). The Subdivision
- The landlord submitted the subdivision application on 5 March 2025 and it was approved on 4 April.
- 14 April the tenant noticed strangers taking photographs of the property. She questioned the landlord about who that might be. He suggested, “maybe a mate”.
- 23 May the landlord mentioned that he was thinking of subdividing the property.
- 25 May the landlord asked if someone (the tenant thought a valuer) could visit the property. She agreed and was out when that visit happened.
- 26 May the tenant was advised at 4:37pm that the council would be at the property the following morning at 8:30am. The tenant thought it was to deal with a Council issue. The visit was to install additional connections required for the subdivision. The tenant was told that there would be more works the next day.
- 27 May those works involved a digger being brought to the rear of the property. The pergola, some plants and gardens were removed. The demolished structure and debris remained there to the end of the tenancy. The tenant was advised that there would be more work the next day.
- 28 May, for geotechnical investigation, holes were dug in the back section. The dirt from the holes remained here to the end of the tenancy.
- The tenant raised her concerns with the landlord about the extent of the work being carried out, the lack of warning to her about the intended subdivision and what it entailed. She was assured that the landlord would clean up the back yard and that the work that had been done was all that would be required at that point.
- Two days later, Unison entered the property without prior notice to the tenant. The power was disconnected for around 6 hours and the Unison worker required access into the house. This was also work associated with the subdivision, not repair work.
- 5 June the tenant was again given assurances that the back yard would be cleaned up and that there shouldn’t be any more random visits like the Unison one.
- 25 June the tenant was told that surveyors would need to visit, to mark out the boundaries and that he would advise the tenant when they would be coming.
- 2 July the tenant was called at work by her son to be told that there were people on the property with a big tripod. No notice had been given.
- 11 August 2025 the tenant was again contacted by her son, concerned because there was someone on the property. It was the landlord starting work on a carport, without notice. That work continued sporadically for several weeks with the landlord and/or his workers coming and going without any advice to the tenant. Around the same time, the tenant found that unbeknownst to her, a rainwater tank had been installed at the property alongside the rear of the house.
- 25 August the tenant requested a copy of the tenancy agreement to check what she had agreed to in terms of the intrusions she was increasingly concerned about.
- 2 September the tenant was told that a digger would be coming to dig and prepare the driveway to the new carport and that the dirt would be added to the pile in the back yard.
- 7 September the tenant was advised that the carport was still not finished and that the landlord would clear up the back yard.
- 8 September there were builders at the property with no prior notice.
- 13 September a concrete contractor arrived at the property without notice. He asked that the tenant arrange for a neighbour to move their car and asked if he could borrow a wheelbarrow.
- The landlord was on site that day as well, without prior notice and took his wheelbarrow to the back yard to store it. Concrete, rubble and soil was spread over the front yard.
- 20 September the tenant again requested a copy of the tenancy agreement. It was provided on 23 September.
- 28 September the tenant gave notice of termination. It was agreed that the bond would be used to cover the last 3 weeks’ rent leaving $810.00 of the bond which has since been paid by the landlord to the tenant. The Claims
- The tenant claims the following breaches of the landlord’s obligations: a. failure to provide a tenancy agreement before start of the tenancy; b. requiring more than 4 weeks’ rent as bond; c. failure to lodge the bond; d. breach of right to quiet enjoyment.
- The tenant seeks compensation and/ or exemplary damages for those breaches Approach to deciding the claims
- The first thing the Tribunal has to do is determine whether the landlord breached his obligations in the ways claimed.
- These are the tenant’s claims so as applicant she is required to provide evidence that proves the facts on which the claims are based, on the balance of probabilities (more likely than not).
- If breaches of the landlord’s obligations are proved, the Tribunal must then assess whether loss has been caused. That loss may be in terms of financial loss or loss of amenity in the tenant’s use and enjoyment of the premises. Generally a party would be entitled to compensation for losses foreseeably caused by the other party’s breach.
- In some circumstances where a breach has caused harm that is difficult to quantify, the Tribunal can also award general damages.
- If the breach is of a type which the RTA classes as an unlawful act, the Tribunal then needs to consider whether it would be just to make an award of exemplary damages. The purpose of exemplary damages is not to compensate for loss but to punish unlawful behaviour. Exemplary damages may be awarded in addition to compensation, up to the maximum amounts specified in Schedule 1A RTA.
- In deciding whether to award exemplary damages, the Tribunal must be satisfied that the breach was intentional, which means that what was done, was done consciously. It does not require that the landlord intended to act unlawfully. 2
- The Tribunal then needs to consider the intent behind the breach, the effect of the breach, the interests of the tenant and the public interest. 3
- In some circumstances, where more than one unlawful act has been committed, the Tribunal needs to be careful to ensure that multiple “punishments” are not awarded for what are, in substance, the same breach of the party’s obligations. 4 Failure to provide tenancy agreement
- Before the tenancy starts, a landlord must sign the agreement and provide a copy to the tenant. 5 Not doing so is an unlawful act attracting maximum exemplary damages of $750.00.
- The landlord did not meet that obligation. The signed agreement was not provided until 3 February 2025, for a tenancy starting on 31 January.
- After the agreement was signed by the tenant, a copy of the completed agreement was not provided to her at the time, which was required. After a copy was requested by the tenant, a copy was not provided until about a month later.
- The landlord breached his obligations and committed an unlawful act.
- The breach must be considered intentional.
- The consequences were that: a. the tenant was put in the position of having moved into the premises without the protection of a tenancy agreement being in place; b. the landlord insisted on payment of the bond, before there was any tenancy agreement in place under which he was entitled to receive a bond; c. the tenant was left in doubt about her entitlements while waiting for a copy of the agreement to be provided. 2 See for example TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 at para [37] 3 S.109(3) RTA 4 Eg. Gardiner v Upland Bay Investments Limited DC Wellington CIV-2014-085-13, 27 August 2014 at paras [28] [29] 5 S.13(2) RTA
- The landlord’s action in taking a bond before there was any entitlement to receive it, with no agreement having been signed as required, failing to provide the tenant with a copy of the agreement before she moved in and taking so long to provide a copy when requested, all added to the tenants’ sense of vulnerability in the tenancy.
- The public interest requires that landlords are aware of and comply with simple but core obligations like this. The landlord is responsible for other tenancies and should be well aware of his statutory obligations.
- The landlords’ failure to properly document and provide the agreement to the tenant, with the exacerbating factors noted, mean it would be just to make a significant award of exemplary damages. Requiring more than 4 weeks’ rent as bond
- A landlord is not able to take more than 4 weeks’ rent as a bond. Doing so is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded. 6
- The landlord took a bond of $3,000.00, being 4 weeks x the originally intended rent of $750.00. The bond amount was not reduced when the lower rent of $730.00 was agreed.
- The landlord committed an unlawful act by doing so and again breached his statutory obligations, by not ensuring the bond amount was adjusted to reflect the lower rent. I have decided though that it would not be just to make an additional award of exemplary damages for this breach, because: a. the landlord was careless rather than acting to benefit himself, in not reducing the bond amount when the agreed rent reduced; b. the consequences for the tenant were not of major significance (a total of an extra $80.00 in bond held); c. other awards of exemplary damages have been made against the landlord from which the tenant will benefit, for more consequential breaches by the landlord. Failure to lodge the bond
- A landlord must lodge any bond payment received from the tenant, 6 Ss.18(1) and (4)(a) RTA with the Bond Centre, within 23 working days of receiving it. 7 Not doing that is an unlawful act with maximum exemplary damages of $1,500.00.
- There is no dispute that the landlord failed to lodge the bond. The landlord says he didn’t do so because he has had difficulty accessing tenant’s bonds in the past.
- While I appreciate the landlord’s candour, it is clear that he was well aware of his legal obligations but chose not to meet them because it didn’t suit him to do so, even after having given assurances to the tenant that the bond would be lodged with the Bond Centre as required.
- I take into account that the whole of the tenant’s bond was returned to hew without significant dispute when the tenancy ended but can see no other mitigating circumstances for what was a flagrant and deliberate decision to act unlawfully.
- It would be just to again make a significant award of exemplary damages. Breach of Right to Quiet Enjoyment
- Tenants are entitled to the peaceful enjoyment of the premises they are renting.
- Section 38 RTA states that: “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
- The “premises” rented by the tenant, included the land around the dwelling and the improvements on that land. 8
- There is no doubt and in fairness to him the landlord acknowledges, that the intrusions listed above into the tenant’s, “..reasonable peace comfort and privacy..” by the landlord and by persons acting on his behalf, breached those entitlements.
- The real issue here is assessing fair redress. 7 S.19(2) RTA 8 See definition of “premises” in s.2 RTA
- Landlords are entitled to have access to premises to inspect, repair, show prospective buyers/ tenants and for the other purposes listed in s.48 RTA.
- None of those purposes were relevant here. The landlord was accessing the property solely for his own benefit, to progress a subdivision, which he had not told the tenant he was planning, when the agreement was entered into.
- Notice is required to enter premises for the purposes listed in s.48. Under that provision “premises” excludes land or facilities. That means it is not unlawful for a landlord to enter onto the land, as opposed to the dwelling, without notice. A landlord must still though respect the tenant’s right to quiet enjoyment of the whole of the property rent is being paid fro.
- It is fundamentally inconsistent with the tenant’s right to quiet enjoyment of the whole of the land and buildings, for: a. the pergola plants and gardens to be demolished without notice or consent; b. debris and dirt mounds, impacting on the amenity and enjoyment of the back yard to be left there throughout the tenancy; c. the landlord, workmen or other trades people to regularly appear and undertake work at the premises without prior notice; d. a major construction project, building of a carport, concrete driveway and road access point, to be undertaken right next to the house without the tenant’s prior consent. Again, that was not for any maintenance/ repair reason or as an amenity to the tenant, it was required to provide a separate street entrance to meet subdivision conditions. The tenant’s evidence is that she made t clear she neither needed nor wanted the carport, or to lose the sheds the landlord also wanted to remove.
- The landlord says and I accept, that there was no intention to build on the subdivided section or deprive the tenant of the use of it. The intention was to subdivide the property and landbank it for future development.
- When I asked the landlord why he had not cleared up the mess in the back yard, he said that by June it became apparent that the tenant was not comfortable with the amount of work being done on the property so he thought it best not to disturb her by doing that clean up work in the back – yet not much later he starting building the carport immediately outside the windows of the house.
- The facts are that the carport, driveway and street access were required to meet conditions for his subdivision, cleaning up the back yard wasn’t.
- The evidence shows that: a. the ongoing subdivision work had an increasingly fundamental impact on the tenant’s use and enjoyment of the premises; b. those concerns were brought to the landlord’s attention; c. the landlord nevertheless continued to do whatever work was necessary to meet the subdivision conditions. At times he told the tenant what was going to be done but nothing in the evidence shows that her informed consent was not asked for.
- With respect, the evidence suggests that the landlord really had no conception that because he had rented the property to the tenant, he no longer had the legal right to do whatever he wanted with it.
- As a result, the tenant lost a good deal of the use enjoyment and amenity of the premises. That loss should be compensated for.
- When making her application the tenant assessed that loss of enjoyment and amenity as equal in value to 20% of the rent paid since the intrusions began in earnest, with the excavations in the back yard. She says that she has reconsidered her claim because of what she sees as the landlord’s continued minimisation of the impacts of his actions.
- In terms of the tenant’s assessment of her loss, I put greater weight on the assessment made at the time, than one influenced by the litigation since.
- My view of the evidence is that 20% of the rent paid would be fair compensation to the tenant for the direct loss of amenity resulting from the landlord’s breach of her right to quiet enjoyment of the premises in the ways identified.
- That takes into account that the tenant’s use of the house itself was, for the most part, not directly affected. The intrusions were significant and affected her privacy when they occurred. They were not constant but the uncertainty of not knowing when the next person would show up was unsettling. Some of the effects such as the reduced amenity of the back yard, affected by holes, dirt piles, debris and ruts left by digging equipment, were ongoing.
- In addition to the direct loss of amenity, the evidence shows that the landlord’s breaches also meant the tenant was required to deal with less tangible harms such as the significant stress anxiety and frustration in having to respond to unannounced visits to her premises by strangers, calls from her son concerned about intruders, having to confront the landlord over these issues and ultimately ending the tenancy because of her loss of trust in the landlord’s integrity.
- In those circumstances, it is appropriate to consider making an award of general damages, the purpose of which is not to compensate for a quantifiable loss but to compensate for pain or suffering or emotional distress” 9
- By their nature, general damages are difficult to calculate mathematically.
- In Tenant v Ezy Rentals 10 the Tribunal said: “By reference to Otautahi, I consider the bands that might usefully inform the Tribunal’s decision in this case are: A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.”
- Those are not strict categories and each case must be assessed on its merits.
- Here, I take into account that compensation has been awarded to the tenant that recognises some of those factors, as compensation for loss of amenity/ enjoyment.
- I am satisfied though that the ongoing and disrespectful intrusions by the landlord on the tenant’s right to quiet enjoyment of her home, for his advantage, mean that a modest award of general damages would be just, in addition to the compensation awarded.
- Because the tenant has succeeded with claims I must reimburse the filing fee. 9 See Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 10 Tenant v Ezy Rentals [2022] NZTT 4323927