Published tribunal order
Tenancy Tribunal case 4337059 — Rent arrears at 9A Te Haumi Drive, Paihia, Northland 0200
Decided 9 Aug 2023 · Published 9 Aug 2023 · Application 4337059
Landlord favoured
- Rent arrears
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Foulis Investments Limited is to pay Stefanie Fraser $121.18 calculated as shown in table below.
- The Bond Centre is to pay the bond of $600.00 (3037220-020) to Stefanie Fraser immediately.
Reasons
Background
- The tenant’s application raises issues relating to the bond, refund of water rates and water cylinder payments made to the landlord, loss of use of a “facility” and breach of quiet enjoyment.
- Foulis Investments filed two applications in respect of this tenancy. Application 4340257 was withdrawn. Application 4344598 sought an order for possession.
- On 11 August 2022 I made an order for possession.
- On 11 January 2023 I made an order dismissing the tenant’s application. The tenant had not appeared at the hearing that was scheduled to take place on 11 January.
- Ms Fraser filed an application for a re-hearing.
- On 16 February 2023 I made an order granting the re-hearing. In the decision, I noted that the landlord intended to re-open their application to seek rent arrears and other end of tenancy costs.
- The hearing of the tenant’s application and the landlord’s claim for costs took place in Whangarei on 28 July 2023. Both parties attended the hearing. Tenant application Bond
- Ms Fraser paid a bond of $600.00 at the commencement of the tenancy in November 2018.
- The bond was not lodged with the Bond Centre until March 2022.
- Landlords must lodge any bond payments with the Bond Centre within 23 working days of receipt 1 .
- A breach of this duty is an unlawful act.
- The Tenancy Tribunal may award exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally 2 .
- In November 2018, the maximum award of exemplary damages for a failure to lodge the bond with the Bond Centre was $1,000.00. In February 2022, the maximum award increased to $1,500.00.
- Mr & Mrs Munro acknowledged that they made an error with regards to the bond. 1 Section 19(1)(b) Residential Tenancies Act 1986 (“RTA”) 2 Section 109 RTA
- In considering an appropriate award of exemplary damages, the Tribunal must have regard to 3 : a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
- In Wellington Property Management Ltd v Hardie 4 [2022] NZTT 4399281 4374781 the adjudicator noted that: the usual approach of the Tribunal with exemplary damages is to award one third of the maximum, unless there are aggravating or excusing factors in play
- The landlords’ failure to lodge the bond within 23-working days occurred in November 2018. It is appropriate to have regard to the maximum exemplary damages that was in place at that time.
- In this instance, I accept that the landlord’s failure to lodge the bond was a genuine error. However, I also note that the bond was not lodged for a long time. I have also had regard to the stress and anxiety this caused to Ms Fraser.
- Having regard to those factors I will award exemplary damages of $350.00. Refund of water rates / water cylinder payments
- The tenanted premises has a sub-meter for water.
- The landlords had no process in place to regularly read the sub-meter, calculate Ms Fraser’s actual water use, and invoice her appropriately (providing a calculation, evidence of the meter read such as a photograph of the meter, and a copy of the current Council water rates invoice to confirm the current consumption charge).
- Ms Fraser submitted that she took photographs of the meter of her own volition, and she made voluntary water rates payments during the tenancy.
- In Mr & Mrs Munro did not dispute that it was their responsibility to pay for the repairs to the water cylinder, and they did in fact pay the repairer directly. Ms Fraser chose to also make payments to the landlord for the water cylinder.
- Near the end of the tenancy the landlords completed a reconciliation of water payments and water rates owed. The landlords calculated that Ms Fraser was in credit in the amount of $885.11. 3 Section 109 RTA 4 [2022] NZTT 4399281 4374781
- The landlord’s calculation of the credit is as follows: Water consumed during the tenancy:$314.89 (based on Ms Fraser’s meter readings) Total payments made by Ms Fraser during $1,200.00 tenancy (including water cylinder payments)
- Ms Fraser disputed the landlord’s calculation of her payments.
- Ms Fraser provided evidence of payments totalling $1,400.00. Of this, $500.00 was payments towards the water cylinder.
- Ms Fraser is seeking a refund of the $900.00 that she paid towards water, and also refund of the water cylinder payments.
- Ms Fraser is entitled to a refund of the water cylinder payments.
- Ms Fraser is not entitled to a refund of all of her water payments.
- I acknowledge Ms Fraser’s complaint that the landlord failed to put in place a proper process for calculating water use, and for issuing regular and accurate invoices to her. The responsibility fell to Ms Fraser, and it should not have.
- However, tenants must pay for water that they consume during the tenancy 5 .
- The amount of $314.89 is likely to be an under-assessment of Ms Fraser’s water use during her four-year tenancy.
- Ms Fraser is entitled to a refund of $1,081.11 calculated as follows: Payments towards water:$900.00 Payments towards water cylinder:$500.00 Less water use:$314.89 Loss of use of “space facility”
- The tenanted premises is 9A Te Haumi Drive, a stand-alone unit.
- Neighbouring 9A is 9 Te Haumi Drive. The landlords also own this property. During Ms Fraser’s tenancy, 9 Te Haumi Drive was rented out for short-stay accommodation.
- The “space facility” that Ms Fraser refers to is an area underneath the deck of 9 Te Haumi.
- Ms Fraser submitted that she used this area for storage from the beginning her her tenancy. She submitted that there is limited storage at 9A. 5 Section 39(3) RTA
- The landlords did not raise any issues or concerns until they abruptly locked her out of this area on 8 May 2022.
- Ms Fraser submitted that this was part of a campaign of harassment against her, to force her out of the tenancy.
- Ms Fraser noted that there is nothing in her tenancy agreement which states that she cannot use this area.
- If a landlord wishes to reserve part of the property for their own use, then the burden is on the landlord to make this clear in the tenancy agreement. This principle applies if the landlord wants to exclude, for example, a room in the house, or part of the garage, or a shed.
- However, the landlord does not need to state that the tenant cannot use any part of a neighbouring property. A tenant can have no expectation that they could use any part of any neighbouring premises.
- Ms Fraser had no right to use any part of 9 Te Haumi without the explicit agreement of the landlords.
- No such agreement is proven.
- The fact that Ms Fraser had been using this area did not create a continuing right to use it. The property at 9 Te Haumi belongs to Mr & Mrs Munro, and no part of it was rented to Ms Fraser.
- The landlords were entitled to lock Ms Fraser out of this area.
- This part of the tenant’s claim must be dismissed. Breach of quiet enjoyment / harassment
- Landlords must not cause or permit any interference with the reasonable peace, comfort, and privacy of the tenant 6 .
- A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act 7 . Exemplary damages of up to $3,000.00 can apply.
- Ms Fraser raised three issues under this heading: a. An “inspection” carried out by the landlords on 10 April 2022. b. The security camera on the roof of 9 Te Haumi that the landlords installed in May 2022. c. A text message that she received from Mr Munro on 2 May 2022. d. The hand-delivery of a termination notice on 24 March 2022. 6 Section 38(2) RTA 7 Section 38(3) RTA Inspection 10 April 2022
- Mr & Mrs Munro gave notice of an inspection and came to the property on 10 April 2022.
- Ms Fraser submitted that this was not a genuine inspection, but a pretence to harass her.
- I was provided with a copy of an audio recording that Ms Fraser took on 10 April. The recording covers the period from when Mr & Mrs Munro arrived until they left the house. I understand that there were some more interactions between Mr & Mrs Munro and Ms Fraser’s support person after they left the house, which are not on the recording.
- There are no raised voices or inappropriate comments on the audio recording.
- Part of the conversation is Ms Fraser attempting to raise issues / concerns, which Mr & Mrs Munro were obviously not interested in talking about at that time.
- That may have been frustrating for Ms Fraser, but it is far short of what amounts to harassment.
- The landlords gave proper notice, and they were legally entitled to enter the premises to carry out an inspection. They were not obliged to take photographs, and they were not obliged to engage with the tenant.
- I am satisfied the landlords were at the premises for a lawful and legitimate purpose, and there was no unreasonable interference with Ms Fraser’s peace, comfort, and privacy. Security camera
- In May 2022 the landlords fitted a CCTV camera on the roof of 9 Te Haumi.
- The camera captures parts of the shared driveway. The camera does not capture any part of 9A Te Haumi.
- Ms Fraser covered the camera several times. The camera went missing in late May 2022. The landlords installed a replacement, which also went missing.
- Mr & Mrs Munro submitted that they decided to install the camera for multiple reasons, principally related to the short term (Air Bnb) rental business at 9 Te Haumi.
- Ms Fraser submitted that: a. The camera is part of the landlord’s campaign of harassment against her. b. The landlords do not have genuine reasons for putting the camera up. If they had genuine reasons, they would have put the camera up long ago.
- My findings are: a. It is commonplace in modern society for homes and businesses to have CCTV security cameras on the exterior. b. Any person must reasonably expect to be captured by a CCTV camera if they are in a public space, particularly in urban areas. c. A shared driveway is not a private space. Anyone can go up and down a driveway. Anyone can look at a driveway. d. I accept that the landlords installed the camera for a legitimate purpose. e. The presence of the camera was a minimal interference with the tenant’s privacy, it was not an interference with her privacy “in the use of the premises”. The camera captured no part of 9A. f. There is no breach of the landlord’s legal obligation under section 38(2) RTA. Text message on 2 May 2022
- On 2 May 2022, Mr Munro sent Ms Fraser a message asking her to stop taking photographs of guests of their Air Bnb property at 9 Te Haumi Drive.
- Ms Fraser submitted that the prompt for this message was that she was standing on her driveway talking on her phone. She submitted that the landlords have carelessly or intentionally misinterpreted this as her taking photographs of guests at 9 Te Haumi. Ms Fraser denied taking any photographs of guests.
- Mr Munro submitted that his message was prompted by a complaint that he received from a guest. The guest told Mr Munro that Ms Fraser was taking photographs of them, that they asked her to stop doing it and she did not.
- Ms Fraser’s argument that Mr Munro’s message was prompted by someone seeing her talking on her phone on the driveway three days prior, is not particularly convincing. Ms Fraser has comprehensively proven that she was talking on her phone on 29 April, but I do not accept that this has any connection to Mr Munro’s message.
- It is more likely that it was, as Mr Munro submits, prompted by a complaint received from a guest.
- Mr Munro could not know whether the guest’s accusations were true, but it was reasonable for him to take action in response to the complaint. The purpose of his message was not to harass Ms Fraser but to ensure that Ms Fraser was not harassing his other tenants.
- The landlord’s action did not amount to a breach of a legal duty under section 38(2) RTA. Delivery of termination notice on 24 March 2022
- The landlords hand delivered a termination notice to Ms Fraser at the premises on 24 March 2022.
- The landlords recorded their delivery of the notice, and I was provided with a copy of a four-minute video recording.
- The landlords were recording because of previous issues with service of notices. They wanted proof of delivery.
- The video shows Mr & Mrs Munro standing outside a ranchslider on the deck. Ms Fraser is inside the house – she can be heard but not seen on the video. The ranchslider door is open but the curtain is drawn.
- Mr & Mrs Munro ask Ms Fraser to provide her email address. Ms Fraser responds that it is written on the tenancy agreement. Mr & Mrs Munro respond that her handwriting is not legible. They insist that Ms Fraser state her email address verbally or immediately send them an email from that address. Ms Fraser refuses.
- The discussion lasts for several minutes. Mr & Mrs Fraser then drop the notice at the entrance of the ranchslider.
- Landlords are entitled to deliver notices by hand to the tenant 8 . It was legitimate for the landlords to be there for that purpose.
- However, it was unwise for Mr & Mrs Munro to attempt to engage Ms Fraser about other issues. Their purpose was to deliver the notice and then leave.
- The conversation was tense. When Ms Fraser told Mr & Mrs Munro that she would not state her email address, Mr & Mrs Munro stated that they would not leave until she did so. At one point, Mrs Munro told Ms Fraser that they would be carrying out inspections every two weeks for the remainder of the tenancy. Legally, landlords cannot carry out a routine inspection more frequently than once every four weeks 9 .
- The incident was unnecessarily antagonistic, and stressful for Ms Fraser.
- My finding is that the incident amounted to an unreasonable interference with the tenant’s peace, comfort, and privacy. 8 Section 136(1)(a) RTA 9 Section 48(2)(b) RTA
- The circumstances did not amount to harassment of the tenant. The landlords were frustrated, and that explains much of what was said, but their purpose was not to vex or distress Ms Fraser. I will not make an award of exemplary damages.
- I will make an award of compensation to reflect the unnecessary distress caused to Ms Fraser.
- I will award $200.00. Landlord application Security camera removed
- The security camera that the landlord installed on the roof of 9 Te Haumi in May 2023 went missing several weeks later.
- The landlords replaced the camera. The replacement camera also went missing.
- The landlords submitted that on the first occasion the camera had been carefully unscrewed and removed from the roof. They noted some damage to the gutter in that area, indicating that whoever removed the camera climbed onto the roof. On the second occasion the camera was removed forcibly.
- On both occasions the camera was covered at the time that it was removed.
- Ms Fraser did not dispute that she covered the cameras. She submitted that she did so to protect her privacy.
- At the hearing I asked Ms Fraser whether she also removed the cameras. Ms Fraser appeared reluctant to specifically deny this, instead repeating her admission that she covered them, and asking the landlord to provide proof that she had removed them
- At one point Ms Fraser did state that she “did not touch” the cameras, which again is not an explicit denial because it is possible to remove the camera without touching it.
- Ms Fraser is correct that the landlord has the burden of proof.
- The landlords’ inference that Ms Fraser removed the cameras is a reasonable one. The presence of the camera clearly caused Ms Fraser significant distress.
- However, apart from that strong inference there is no evidence to link Ms Fraser to the theft of the cameras.
- Mr & Mrs Munro provided multiple short audio recordings which I understand were taken from the camera (which is capable of recording audio as well as video). One of the recordings briefly captures Ms Fraser’s voice. However, Ms Fraser has never denied that she covered the cameras. There is nothing on the recordings to support the argument that Ms Fraser removed the cameras.
- The landlords installed a surveillance camera warning sign on the fence at 9 te Haumi. Mrs Munro submitted that she found this sign inside the wardrobe in 9A after Ms Fraser vacated.
- Ms Fraser disputed this and suggested that Mrs Munro may have put the sign there.
- I acknowledge the landlords’ suspicion that Ms Fraser removed the cameras.
- However, there is not sufficient evidence to justify a finding that their suspicion is proven to the standard of “more likely than not”.
- Therefore this part of the claim must be dismissed. Rent arrears
- In February and March 2022, Ms Fraser began paying $80.00 per week in addition to her usual rent of $300.00 per week. Ms Fraser made five such payments, the final one on 2 March 2022.
- Ms Fraser then did not make any rent payments on 9 March, 16 March, and 23 March.
- The landlords’ claim seeks rent arrears of $500.00, which is the three missed payments of $300.00 less the tenant’s overpayment of $400.00.
- The claim is proven. Glass pane in ranchslider
- Tenants may make minor alterations to the premises with the landlord’s consent. Such consent may not be unreasonably withheld 10 .
- If a tenant makes an alteration, the tenant must, on or before the end of the tenancy, reinstate the premises to the same condition as they were before the alteration was made 11 .
- At the hearing, Ms Fraser was reluctant to admit that she had a catflap added to a pane in the ranchslider. Ms Fraser did ultimately concede that there was no such catflap when her tenancy began, that the work was carried out by a glazier whom she knows, and that she paid the glazier for that work. That information is sufficient for me to conclude that Ms Fraser made an alteration to the premises. 10 Section 42A and 42B RTA 11 Section 42B(4).
- Even if such an alteration was consented by the landlord (which it wasn’t in this instance), Ms Fraser would be responsible for any costs associated with reinstating the premises at the end of the tenancy.
- Ms Fraser did make the arrangements to reinstate the standard glass pane, but the landlords paid the glazier.
- The landlords are entitled to recover this cost from Ms Fraser. Doors
- Ms Fraser removed all of the internal doors and put them into a storage unit.
- The doors were not reinstated at the end of the tenancy.
- Ms Fraser submitted that: a. She left the tenancy in rushed circumstances, and it was too costly and difficult for her to reinstate the doors before the end of the tenancy. b. The doors are safe and undamaged, and the landlords can retrieve them if they want. c. The landlords did not want the doors anyway because they re-decorated the interior of the unit after she left, and they have installed a different style of door. d. She spoke with Mr Munro approximately two weeks after the end of the tenancy and he confirmed that he was not interested in the doors.
- Mr & Mrs Munro submitted that: a. They asked Ms Fraser to reinstate the doors before the end of the tenancy. b. If the doors had been reinstated, they would not have gone with a different style of door in the re-decoration, but they would have ‘tidied up’ the existing doors. c. By the time that Ms Fraser contacted Mr Munro they had already gone with a different option and the existing doors were of no further use.
- As noted above, even if the landlord had consented to the removal of the doors (which they did not), Ms Fraser would still be legally obliged to reinstate them at the end of her tenancy.
- The ‘rushed circumstances’ did not remove that legal duty.
- Ms Fraser’s offer to return them two weeks after the end of the tenancy did not meet her legal duty.
- The landlords are entitled to compensation for the loss they have incurred due to the tenant’s breach of her legal duty.
- The landlords seek $1,437.50, based on the new replacement cost of five mid- range passage doors.
- I do not accept Ms Fraser’s argument that the doors are worth essentially nothing because the landlords were going to dispose of them anyway. Ms Fraser is making an assumption based on a course of action that the landlords ended up taking after she failed to reinstate the doors.
- However I accept that Ms Fraser’s liability is limited to the value of the existing doors, not the new replacement cost.
- The doors were functional, and there is no evidence of any damage to them beyond normal wear and tear for their age.
- I will apply depreciation of 50% to the replacement cost claimed.
- Ms Fraser is liable for $718.75.
- I also note that it is an unlawful act for a tenant to fail to reinstate the premises at the end of the tenancy after carrying out a minor alteration 12 . Exemplary damages of up to $1,500.00 can apply. The landlord is not seeking exemplary damages in this instance. Summary
- Both parties have been partially successful in their applications, and each must bear their own cost of the filing fee.
- The tenant’s proven claim totals $1,635.11. The landlord’s proven claim totals $1,513.93. Foulis Investments Ltd is to pay Stefanie Fraser $121.18.
- The bond will be released to Ms Fraser.