What was the outcome of Tenancy Tribunal case 4490122?

The tribunal order states: Sandra Downes must pay Alarna Power and Simon James Power $3,020.44

How much money was awarded in case 4490122?

Compensation: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4490122?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4490122?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10234608-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4490122?

The tribunal order states: Sandra Downes must pay Alarna Power and Simon James Power $3,020.44

How much money was awarded in case 4490122?

Compensation: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4490122?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4490122?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10234608-Tribunal_Order.pdf.

Unit/Flat 1, 32 Matuhi Rise, Henderson, Auckland 0612 Tenancy Tribunal Case 4490122 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4490122 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,000.00	Compensation
Exemplary damages (giving notice without grounds	$2,000.00	Exemplary damages (giving notice without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44

Order

Sandra Downes must pay Alarna Power and Simon James Power $3,020.44 immediately.

Reasons

Both parties attended the hearing. Simon Power appeared on behalf of himself and Alana Power, with her authority. The landlord attended by phone.
This claim concerns the tenancy of a house in Henderson, Auckland.
The landlord lives in Wellington and the property was managed by property managers located in Auckland (although the tenancy agreement records that the property managers were acting only as agent for the landlord, and I have been told that they are no longer engaged as agents). There was no suggestion by either party at the hearing that the property managers should have been named as a party to the proceeding.
The tenants claim that the landlord has unlawfully terminated the tenancy. They seek compensation and exemplary damages.
This is the tenants’ claim and so they bear the onus to prove their claim to the civil standard, on the balance of probabilities.
For the sake of brevity I have not referred to all of the evidence presented at the hearing, but the parties should be assured that I have reviewed and considered all of the evidence in making my decision. Notice to terminate the tenancy
The tenancy began on 13 March 2021 and ended on 23 December 2022. The tenancy ended because on 26 October 2022 the landlord (through the property managers) gave notice to the tenants as follows:
The notice came at a very difficult time for the tenants as they are busy and have a young child and were in the process of organising their wedding. They say that they pushed for details and asked whether the renovations could be delayed or whether they could stay during the renovations but were not given any information about the renovations.
The tenants had also entered into an agreement for sale and purchase of Kiwibuild property with settlement in July 2023. The tenants asked the landlord whether they could stay until then, rather than have to try to secure another rental for a period of only six months but the landlord declined, saying that they would rather do the work over the summer months.
The tenants then set about finding a new rental property and moved into another property on 23 December 2023 at an increased rental (from $520 per week to $565 per week).
The tenants had concerns about the situation and so kept an eye out and noticed that the property was re-listed on 20 January 2023 with a new property management firm. They noticed that the photos didn’t appear to show any significant renovations and so went along to a viewing to confirm their suspicions. They said that apart from some cracks in the plaster being repaired and the windowsills being repainted there did not appear to have been any renovations.
The tenants produced photos in support of their position.
The landlord says that she originally had a good working relationship with the property managers but became concerned in July 2022 when she noticed maintenance issues that the property managers had not raised with her, specifically cracking in the various places (mainly in the plaster scotia) and mould on the window sills and curtains.
The landlord then arranged a site visit on 21 October 2022 to inspect the property, particularly the cracks and a large Liquidamber tree that was growing close to the boundary.
The landlord said that she decided to give notice so that she could have the cracks in the plaster repaired and the windowsills treated and painted and make enquiries with Council as to whether the tree was causing the house to have structural problems.
The landlord said that she was worried about the cracking as it was a potential safety issue. She contacted her insurer and the Council and wanted to investigate further. She said that it took three days for a contractor to repair the cracking including plastering and painting, and treating and painting the windowsills and that it wouldn’t have been possible for the tenants to stay with all of the dust and paint smells particularly as they have a small child. She produced photos of the cracking and mould on the window sills together with an invoice detailing the work done. She also said that a leak in the roof also had to be fixed.
The tenants responded by saying that the repairs only took three days and that they would have been happy to stay. They said that they had no problem living in the property when the bathroom was renovated over a period of two weeks earlier in the tenancy. They said further that the landlord relisted the property for rent before having a meeting with the Council to address potential structural issues.

Was the notice retaliatory?

The tenants claimed in their application that the notice was retaliatory because “the owner and property manager had clashed over apparent issues regarding recent property inspections”. However this ground was not pursued at the hearing and very little evidence was produced on this point. This claim is not proved and is dismissed.

Was the notice unlawful?

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s51(1) or (2) of the RTA.
Section 51(2)(f) provides that a landlord may terminate a periodic tenancy by giving 90 days notice if “extensive alterations, refurbishment, repairs or redevelopment of the premises are to be carried out by the landlord or owner, and- (i)It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)The work is to begin, or material steps towards it are to be undertaken, within 90 days after the termination date...”
I consider that the notice given to the tenants was unlawful because the repairs undertaken by the landlord were not so extensive that it would not be reasonably practicable for the tenants to remain in occupation.
The repairs that were taken were relatively minor and were ultimately cosmetic as the cause of the cracks has still not be found. The landlord must have known this at the time as they had previously obtained a quote to have the work done. Any work on the roof could easily have been done without displacing the tenants.

What compensation should be awarded?

The tenants sought compensation of $1400, being the difference in what they had to pay in rent until they moved into their new home. I have ordered $1000 by way of compensation to take into account the fact that the rent was likely to have been raised every 12 months (and had been) and so the difference would have been less than claimed.

Should exemplary damages be awarded?

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.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I accept that the landlord had a genuine concern about investigating potential structural issues present at the property and intended to do so. However I consider that the landlord was aware that the repairs that were to be undertaken were not so extensive that the tenants could not stay and the Council inspection could have taken place without the tenants having to move. Safety cannot have been an overriding concern as the property was re-let before any Council determination was made.
The unlawful termination has caused the tenants considerable inconvenience. They were in the middle of planning their wedding and have to move, knowing that they would have to move again in only six months’ time.
There is a strong public interest in ensuring that landlords comply with the law and only give notice when they are lawfully entitled to do so.
There is no evidence that the landlord was motivated by any ill feeling or for financial reasons. It seems that they simply thought it would be more convenient to have the work done without the tenants present, and didn’t properly consider whether the renovations were in fact so extensive that they were entitled to give notice.
In the circumstances I consider that exemplary damages are warranted but at the lower end of the scale. I order exemplary damages in the amount of $2,000.
Because Alarna Power and Simon James Power have wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4490122 — net $3,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,000.00	Compensation
Exemplary damages (giving notice without grounds	$2,000.00	Exemplary damages (giving notice without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,020.44
Total payable by Landlord to Tenant	$3,020.44

Order

Sandra Downes must pay Alarna Power and Simon James Power $3,020.44 immediately.

Reasons

Both parties attended the hearing. Simon Power appeared on behalf of himself and Alana Power, with her authority. The landlord attended by phone.
This claim concerns the tenancy of a house in Henderson, Auckland.
The landlord lives in Wellington and the property was managed by property managers located in Auckland (although the tenancy agreement records that the property managers were acting only as agent for the landlord, and I have been told that they are no longer engaged as agents). There was no suggestion by either party at the hearing that the property managers should have been named as a party to the proceeding.
The tenants claim that the landlord has unlawfully terminated the tenancy. They seek compensation and exemplary damages.
This is the tenants’ claim and so they bear the onus to prove their claim to the civil standard, on the balance of probabilities.
For the sake of brevity I have not referred to all of the evidence presented at the hearing, but the parties should be assured that I have reviewed and considered all of the evidence in making my decision. Notice to terminate the tenancy
The tenancy began on 13 March 2021 and ended on 23 December 2022. The tenancy ended because on 26 October 2022 the landlord (through the property managers) gave notice to the tenants as follows:
The notice came at a very difficult time for the tenants as they are busy and have a young child and were in the process of organising their wedding. They say that they pushed for details and asked whether the renovations could be delayed or whether they could stay during the renovations but were not given any information about the renovations.
The tenants had also entered into an agreement for sale and purchase of Kiwibuild property with settlement in July 2023. The tenants asked the landlord whether they could stay until then, rather than have to try to secure another rental for a period of only six months but the landlord declined, saying that they would rather do the work over the summer months.
The tenants then set about finding a new rental property and moved into another property on 23 December 2023 at an increased rental (from $520 per week to $565 per week).
The tenants had concerns about the situation and so kept an eye out and noticed that the property was re-listed on 20 January 2023 with a new property management firm. They noticed that the photos didn’t appear to show any significant renovations and so went along to a viewing to confirm their suspicions. They said that apart from some cracks in the plaster being repaired and the windowsills being repainted there did not appear to have been any renovations.
The tenants produced photos in support of their position.
The landlord says that she originally had a good working relationship with the property managers but became concerned in July 2022 when she noticed maintenance issues that the property managers had not raised with her, specifically cracking in the various places (mainly in the plaster scotia) and mould on the window sills and curtains.
The landlord then arranged a site visit on 21 October 2022 to inspect the property, particularly the cracks and a large Liquidamber tree that was growing close to the boundary.
The landlord said that she decided to give notice so that she could have the cracks in the plaster repaired and the windowsills treated and painted and make enquiries with Council as to whether the tree was causing the house to have structural problems.
The landlord said that she was worried about the cracking as it was a potential safety issue. She contacted her insurer and the Council and wanted to investigate further. She said that it took three days for a contractor to repair the cracking including plastering and painting, and treating and painting the windowsills and that it wouldn’t have been possible for the tenants to stay with all of the dust and paint smells particularly as they have a small child. She produced photos of the cracking and mould on the window sills together with an invoice detailing the work done. She also said that a leak in the roof also had to be fixed.
The tenants responded by saying that the repairs only took three days and that they would have been happy to stay. They said that they had no problem living in the property when the bathroom was renovated over a period of two weeks earlier in the tenancy. They said further that the landlord relisted the property for rent before having a meeting with the Council to address potential structural issues.

Was the notice retaliatory?

The tenants claimed in their application that the notice was retaliatory because “the owner and property manager had clashed over apparent issues regarding recent property inspections”. However this ground was not pursued at the hearing and very little evidence was produced on this point. This claim is not proved and is dismissed.

Was the notice unlawful?

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s51(1) or (2) of the RTA.
Section 51(2)(f) provides that a landlord may terminate a periodic tenancy by giving 90 days notice if “extensive alterations, refurbishment, repairs or redevelopment of the premises are to be carried out by the landlord or owner, and- (i)It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)The work is to begin, or material steps towards it are to be undertaken, within 90 days after the termination date...”
I consider that the notice given to the tenants was unlawful because the repairs undertaken by the landlord were not so extensive that it would not be reasonably practicable for the tenants to remain in occupation.
The repairs that were taken were relatively minor and were ultimately cosmetic as the cause of the cracks has still not be found. The landlord must have known this at the time as they had previously obtained a quote to have the work done. Any work on the roof could easily have been done without displacing the tenants.

What compensation should be awarded?

The tenants sought compensation of $1400, being the difference in what they had to pay in rent until they moved into their new home. I have ordered $1000 by way of compensation to take into account the fact that the rent was likely to have been raised every 12 months (and had been) and so the difference would have been less than claimed.

Should exemplary damages be awarded?

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.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I accept that the landlord had a genuine concern about investigating potential structural issues present at the property and intended to do so. However I consider that the landlord was aware that the repairs that were to be undertaken were not so extensive that the tenants could not stay and the Council inspection could have taken place without the tenants having to move. Safety cannot have been an overriding concern as the property was re-let before any Council determination was made.
The unlawful termination has caused the tenants considerable inconvenience. They were in the middle of planning their wedding and have to move, knowing that they would have to move again in only six months’ time.
There is a strong public interest in ensuring that landlords comply with the law and only give notice when they are lawfully entitled to do so.
There is no evidence that the landlord was motivated by any ill feeling or for financial reasons. It seems that they simply thought it would be more convenient to have the work done without the tenants present, and didn’t properly consider whether the renovations were in fact so extensive that they were entitled to give notice.
In the circumstances I consider that exemplary damages are warranted but at the lower end of the scale. I order exemplary damages in the amount of $2,000.
Because Alarna Power and Simon James Power have wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4490122 — Exemplary damages at Unit/Flat 1, 32 Matuhi Rise, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4490122 — Exemplary damages at Unit/Flat 1, 32 Matuhi Rise, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Order

Reasons

Was the notice retaliatory?

Was the notice unlawful?

What compensation should be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the notice retaliatory?

Was the notice unlawful?

What compensation should be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions