What was the outcome of Tenancy Tribunal case 4439333?

The tribunal order states: An application for suppression has been made in this case but no suppression

How much money was awarded in case 4439333?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4439333?

The primary dispute was State of repair. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4439333?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9248036-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4439333?

The tribunal order states: An application for suppression has been made in this case but no suppression

How much money was awarded in case 4439333?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4439333?

The primary dispute was State of repair. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4439333?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9248036-Tribunal_Order.pdf.

184 Hendersons Road, Hoon Hay, Christchurch 8025 Tenancy Tribunal Case 4439333 — State of repair

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Reasons

Both parties attended hearings on 30 March and 25 July 2023.

Ms Grofski attended in person. Mrs Jacquline Rhodes attended in person, supported by her son, Shane. Mrs Candice Rhodes attended by telephone as a representative for Mrs Jacquline Rhodes.

The landlord has applied for a possession order.

The tenant has applied for exemplary damages for a range of alleged breaches by the landlord and a work order.

For each claim, the applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities and is required to provide the evidence to establish its claims.

The Tribunal’s role has been usefully summarised in Birch v Otautahi Community Housing Trust [2022] NZTT 4207456 at [8], as follows: “The Tribunal is an adjudicative body. It is not a forum for general complaint. It is not a complaints service. It is not an investigative body. And it does not mediate disputes. It looks to what is set out in an application by a landlord or a tenant; hears evidence and submissions from both parties; and makes a decision binding on the parties.” Background

This tenancy has an unusual history. The premises are on a block of land which is also occupied by the landlord. The landlord lives in the main house. The tenancy premises are a self-contained “granny flat”

The start date of the tenancy is unclear. The tenant was a friend of the family and moved into the premises some time after the death of the landlord’s sister in 2018 and before the first Covid-19 lockdown in 2020. The wider Rhodes family did not understand that this was a tenancy relationship, rather they say that Ms Grofski was provided with a place to live to help a friend of the family.

In an Order dated 12 April 2023 I found that this is a tenancy arrangement and is not an excluded tenancy under the Residential Tenancies Act 1986.

The landlord’s husband dealt with the tenancy and arrangements for the premises until his death in September 2021. At that point Mrs Jacquline Rhodes became the sole owner of the property and sole landlord. It seems that the Rhodes’ children helped with the property from that point.

Since 2021 Mrs Jacquline Rhodes’ health has deteriorated. More recently the decline has been rapid.

The current issues arose when Mr Paul Rhodes and his wife Candice began to help Jacquline with property affairs. The family were considering selling the whole property and moving Jacquline to more suitable premises.

Candice and Paul Rhodes, on behalf of Jacquline Rhodes, purported to give notice to end the relationship and asked Ms Grofski to move in 90 days. From about that time, Ms Grofski asserted that this was a tenancy arrangement and began issuing 14-day notices for a range of alleged breaches. Possession Order

The landlord applied for a possession order on the basis of a termination notice issued to Ms Grofski dated 15 August 2022.

The parties referred to two notices dated 15 August 2022. It appears that only the first (screen shot notice) was sent to and received by Ms Grofski. Ms Grofski claims to have only received the second when the landlord applied for a possession order. As such, I have determined the landlord’s application based on the first notice.

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) Residential Tenancies Act 1986. The reason given for termination was that the landlord intended to sell the property. See s51(2)(a) RTA.

The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.

The evidence establishes that, in August 2022, sale was an option being considered by the family in response to Mrs Jacquline’s Rhodes deteriorating health and following the death of Mr Rhodes. There was insufficient evidence for me to conclude that the landlord had a genuine intention to sell the property, rather it was one option being considered.

At the hearing on 25 July 2023, Candice Rhodes advised that the family now wish for Shane Rhodes to move into the premises to assist Jacquline as her health deteriorates. Ms Grofski acknowledged that that would be in Jacquline’s interests and would be a "good thing." However, the correct termination notice has not yet been given in accordance with s51(1)(a) RTA.

In this regard, I also note Ms Grofski’s evidence that she no longer wishes to remain at the property and intends to move but has not yet given notice.

A tenancy arrangement can only be terminated in accordance with the provisions of the RTA. That has not yet occurred, so I cannot issue the possession order sought. The application for a possession order is dismissed. Ms Grofski’s Claims

The application submitted by Ms Grofski did not clearly identify her claims. She was directed to submit a bullet point summary of her claims before the hearing on 25 July 2023.

Ms Grofski provided the Tribunal with a list of claims dated 17 July 2023. Other than a request for a work order, the list was a claim for exemplary damages.

At the hearing on 25 July, I explained that the Tribunal can award compensation and exemplary damages. Compensation is awarded for actual losses arising from a proven breach of the other party’s obligations. Compensation may also be awarded for less tangible effects of established breaches such as a loss of amenity of the tenancy. In contrast, exemplary damages may be awarded, at the Tribunal’s discretion, where a party establishes that the other has intentionally committed an “unlawful act” as defined by the RTA. Exemplary damages 1 are intended to punish or deter.

Ms Grofski confirmed that (other than the work order) her application was for exemplary damages only.

Ms Grofski alleged that the landlord had committed the following unlawful acts: a. Termination of tenancy without grounds – s60AA RTA; b. Failing to ensure tenancy agreement – s13 RTA; c. Failing to give 60 days’ notice for rent increase; d. Failing to give notice as successor – s15(3) RTA; e. Breaches of s45 RTA; f. Altering locks – s46 RTA g. Breach of quiet enjoyment – s38 RTA; h. Failing to appoint an agent when out of the country – s16A RTA Termination without grounds

Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.

Ms Grofski referred to two notices dated 15 August 2022. She said that she only received the one which was presented in evidence as a screen shot. Mrs Candis Rhodes accepted that may be the case as she has no record of the second being sent.

At the time the notices were issued and the application for a possession order was made, the landlord did not understand that this was a tenancy relationship governed by the Residential Tenancies Act 1986 (RTA).

I made findings regarding the nature of the relationship in an order dated 12 April 2023. Notwithstanding those findings, I accept that the landlord and the wider Rhodes family genuinely believed that this was an informal relationship whereby they were helping to provide Ms Grofski accommodation for a modest weekly amount.

The evidence does not establish that the landlord (or Paul and Candis Rhodes) knew that they were not entitled to issue a termination notice or apply for possession. I accept the evidence that sale was being contemplated 1 See s109 and schedule 1A RTA and Auckland City Council v Blundell [1986] NZLR 732; Birch v Otautahi Community Housing Trust [2020] NZDC 17667. at the time the notice was issued and the landlord was attempting to do the right thing.

This aspect of the tenant’s application is dismissed. Failing to ensure tenancy agreement

Ms Grofski claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.

A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.

There is no record of a written tenancy agreement. The now deceased Mr Rhodes dealt with Ms Grofski at the start of the tenancy. Ms Grofski also said that he provided her with documentation in support of an ACC claim at some point. None of the other family members have this correspondence or any documentation between Mr Rhodes and Ms Grofski.

While the failure to ensure a written tenancy agreement is an unlawful act, the tenant did not establish that it would be appropriate to award exemplary damages in this instance.

The request for a written agreement came after Mr Rhodes had died and Candis Rhodes began assisting her mother-in-law. The family have been trying to “untangle” issues relating to the tenancy and to understand what the relationship is, and what Mrs Rhodes’ obligations to Ms Grofski are.

Mrs Jacquline Rhodes has limited capacity to continue dealing with a tenancy arrangement and there was no suggestion that any action or inaction or her part was deliberate or intentional.

This claim is dismissed. Failing to give correct notice of rent increase

Ms Grofski claims that the landlord failed to give correct notice of a rent increase.

Failure to comply with the requirements of s24 RTA does not amount to an unlawful act. Exemplary damages are not available for a breach of that section. See Schedule 1A RTA.

The claim is dismissed. For completeness, I note that the evidence did not establish a breach of s24 in any event. Failing to Give Notice of Successor

Ms Grofski claims that, following Mr Rhodes’ death, the family failed to notify her who the landlord was.

When the relationship started Mr Grant and Mrs Jacquline Rhodes owned the property and would have been the landlords. When Grant died, Mrs Rhodes became the sole landlord.

Ms Grofski had no issue or concern dealing with Jacquline Rhodes, or one of her sons Shane, after Grant’s death. She was aware that Jacquline was the landlord and, in her correspondence to the Tribunal she described Jacquline as “an amazing landlord”.

Issues arose when another son, Paul, and his wife, Candis, began helping with property arrangements. Ms Grofski would prefer not to deal with Candis.

This aspect of Ms Grofski’s claim is also not proved and is dismissed. Altering Locks

A landlord must not alter or remove any lock from the premises. See s46 RTA.

Ms Grofski claims the landlord locked a letterbox. The letterbox is a facility, it does not fall within the definition of the premises.

Further, Candis Rhodes gave evidence that the letterbox was locked for a short period, at Ms Grofski’s request, because she was concerned that her mail was going missing.

Ms Grofski did not establish that it is more likely than not that the landlord has altered or interfered with the locks for the premises. This aspect of the claim is dismissed. Quiet Enjoyment

Celin Grofski claims the landlord’s family has harassed her.

A landlord must not cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

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.

Ms Grofski’s complaints relate to Paul and Candis Rhodes. She says that they have been rude towards her and clearly do not want her at the property. She claims that the landlord’s family have not been nice to her. She also issued a 14-day notice claiming that a hose had been cut.

Candis Rhodes takes a different view of the conversations. Jacquline Rhodes just wants the disagreements and unpleasantness to end.

It is for the tenant to prove her claims. Viewed objectively, the evidence does not establish that it more likely than not that the landlord has caused or permitted any interference with the tenant’s quiet enjoyment. The evidence certainly does not establish harassment.

This aspect of the claim is dismissed. Breaches of s45

Ms Grofski claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

Ms Grofski referred to a number of 14-day notices she has issued requesting repairs but did not refer me to the evidence which would establish that any such repairs were required. The main concern appeared to be with an exterior light which Candis Rhodes said simply required a new light bulb.

Ms Grofski also claims that the landlord has breached its obligation under s45 because the flat does not currently have a Code Compliance Certificate. She did not identify what she claims needs to be done for compliance to be achieved.

Again, the evidence does not establish that it is more likely than not that the landlord has breached its obligations. This aspect of the claim is dismissed. The request for a work order is also dismissed.

Candis Rhodes said that the family is working through the application process and provided evidence from the Council that states: “The council and building cat does not have requirements for having a code compliance certificate before occupation is made.”

In light of that email from the Council I have not considered whether this is an “unlawful premise” as defined by the RTA. I raised the possibility of the premises being unlawful with the parties at the hearing in March and the email Candis Rhodes provided appears to satisfy that issue. See s78A RTA. Landlord failing to appoint agent while out of the country

A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.

Ms Grofski said that this section applied because Mrs Candis Rhodes resides in Australia. As Mrs Grofski has acknowledged in her communication to the Tribunal, Mrs Jacquline Rhodes is the landlord. Candis Rhodes resides in Australia and is assisting her mother-in-law to manage a difficult situation in circumstances where her (Jacquline’s) health is declining.

The Tribunal allowed Candis to represent Jacquline at this hearing based on medical information provided. That does not mean that Candis Rhodes has assumed the role of landlord.

As neither party was successful with their own application, I have not reimbursed either filing fee. As Ms Grofski was unsuccessful with her claims, I have not granted her request for suppression of her details.

Reasons