What was the outcome of Tenancy Tribunal case 4585069?

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

How much money was awarded in case 4585069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4585069?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4585069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9213112-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4585069?

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

How much money was awarded in case 4585069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4585069?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4585069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9213112-Tenancy_Tribunal_Order.pdf.

109 Kittyhawk Avenue, Wigram, Christchurch 8042 Tenancy Tribunal Case 4585069 — Harassment

Order

An application for suppression has been made in this case by the tenant but no order is made as the application is unsuccessful.
The application is dismissed.

Reasons

Background

This application, and 2 others, relates to the tenancy at 109 Kittyhawke Avenue, Wigram, Christchurch.
The tenancy started on 9 February 2023, but the 3 tenant who have made these applications have since moved to other premises.
The landlords are the parents of the fourth ‘tenant’ their son Finn.
Finn and Michael Moynihan were long-standing friends. Finn’s parents wanted to provide their son with a place to live in (with the intention that the house would one day become his) while he was studying at university.
Finn and Michael were to share the house with two other ‘tenants’ Milou Lodewijks and Ella Aull.
Recognising the special nature of the arrangement, the landlords provided the premises at a reduced rental.
The tenancy started well. But the initially cordial arrangement turned sour. Michael, Milou and Ella left the tenancy on 13 July 2023.
The three tenants then filed separate applications against the landlord. The applications are essentially the same (with some minor differences as to the compensation sought. They sought a reduction of the fixed erm tenancy and compensation and/or exemplary damages for what they say were on-going breaches of their quiet enjoyment amounting to harassment.
I held a hearing on 19 July 2023. The hearing lasted 2 hours. I heard the 3 applications together I heard detailed evidence and submissions from both parties. I have delayed issuing this decision because I wanted to give close attention to the applications in an effort to try and understand them. Issues
The issues the Tribunal must determine are these: • Should the Tribunal reduce the term of the tenancy so that it is considered to have ended on 8 June 2023? • Should the Tribunal award the tenant compensation and/or exemplary damages? The nature of the tenancies
But first, some preliminary observations. The arrangement reached between the parties was unusual. Perhaps that was because the landlords were not experienced landlords.
Usually, a situation such as this would have involved Finn as the owner’s son being the ‘tenant’ and the others his flatmates. Had that been the case, the Tribunal would have had no jurisdiction. Section 5 of the Residential Tenancies Act 1986 (RTA) sets out what are excluded tenancies. The Tribunal does not have jurisdiction to adjudicate dispute as between flatmates, only as between landlords and tenants.
Here though, the landlords entered separate tenancy agreements with Michael, Milou and Ella (and presumably with Finn). Separate tenancy agreements for the same premises are not excluded, but they usually specify what each tenancy comprises – for example, Room 1 at the premises.
In this case, there are, in effect, three (possibly four) separate fixed term tenancies for the same premises as a whole, without differentiating the respective tenancies.
Because of the presence of the separate tenancy agreements, the Tribunal can retain jurisdiction. But looked at objectively, this was probably a flatting situation; the tenants Michael, Milou and Ella were like Finn’s flatmates.
The Tribunal will therefore proceed on the basis that this was a residential tenancy under the RTA, but the special nature of the arrangement provides important context. Should the Tribunal reduce the term of the tenancy so that it is considered to have ended on 8 June 2023?
An application to reduce the term of a tenancy under section 66 RTA is an application of high threshold. The tenants must show that, because of an unforeseen change in their circumstances, the severe hardship they would suffer if the term of the tenancy were not reduced would be greater than the hardship the other party to the tenancy would suffer if the term of the tenancy were reduced.
The Tribunal must first consider whether there was an unforeseen change in the tenants’ circumstances.
The tenants freely admitted that their relationship with Finn had fallen apart. That tenants fall out is not an unforeseen change in circumstances; it is foreseeable and common. The tenants’ applications do not pass the first hurdle by quite a margin.
Another ground advanced was that the landlords so seriously breached the tenants’ quiet enjoyment so as to constitute an unforeseen change in circumstances justifying the reduction of the fixed term tenancies.
From the evidence I heard from the parties, I do not accept that either. I will address that in more detail when I discuss the application for compensation and/or exemplary damages.
The tenants want the tenancy to be reduced so as to end on 8 June 2023. Yet, just 3 weeks before then, they all emailed the landlord noting: Living in this property has provided us with many memorable moments and has been a comfortable place to call home. We appreciate the efforts you have made to maintain the property and address any maintenance issues promptly. It is evident that you take pride in ensuring that the property remains in good condition. We have carefully considered out situation and believe an adjustment to the end date would greatly benefit all involved.
That communication does not support the tenants’ application to have the term of the tenancy reduced taking the section 66 RTA criteria into account.
Because the tenants have not proved an unforeseen change in their circumstances, I need not consider their respective hardships, the second part of the section 66 RTA test.
I dismiss the tenants’ applications to have the terms of their fixed term tenancies reduced. Should the Tribunal award the tenant compensation and/or exemplary damages?
First, I will set out some legal principles that explain compensation and exemplary damages.
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for some actual losses (for example an airfare incurred when Michael returned home to his parents due to stress), moving costs, the loss of quiet enjoyment of the tenancy and for emotional distress.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
A surprising element of this case was the detail in which the tenants outlined (and the landlords responded to) each alleged incident of a breach of their quiet enjoyment. The analysis was almost forensic, but with little merit.
I explained that the Tribunal is not a forum of general complaint. It hears and determines alleged cases of landlord (in this case) breaches of the RTA and then decides what should happen as a result. What the Tribunal heard in this case was every little perceived action or comment by the landlords resulting in hurt feelings.
That the Tribunal can make orders does not mean that it always should. Context is important.
Here, the landlords owned the property and provided it to their son Finn and the other tenants at a reduced rent, which the tenants accept. The landlords also delayed the commencement of when the rent was payable from.
When Finn suffered a serious injury requiring surgery, it was only natural that his mother would spend time with him. I gained the impression that she was sensitive to the needs of the other tenants. For example, she would take them meals when she visited to check on her son. They seemed to accept that and took no exception to her visiting her son.
When the relationship between Finn and the tenants was in decline (and as a result, it seems, the relationship between the tenants and Finn’s parents) they arranged a meeting to resolve matters. That was sensible but apparently it did not achieve the outcome the tenants were hoping for.
The tenants allege that the multiple texts and emails they received amounted to emotional abuse and manipulation before and during the stressful exam period, such that they had to apply for special consideration to sit their exams at a later date. In the letter Milou wrote to the committee she referred to an intense dispute with my landlords, which resulted in me being forced to move and make a tenancy application against them.
The tenants outlined several occasions they say constituted breaches by the landlord: alleged unlawful entries; abusive and manipulative behaviour; inspections without adequate notice; a failure to provide copies of the signed tenancy agreement; rude comments and unreasonable demands about repairs to the garage wall; stipulations about the use of a carpark.
Michael described receiving a 14-day notice to remedy late at night following which he could not get out of bed until the following afternoon such was his distress. He then had to consult a doctor and his head of studies and flew home to his parents.
The extra-ordinary distress described by the tenants is difficult for the Tribunal to understand given the evidence about what occurred during the tenancy. Emotional distress is a subjective experience and not one the Tribunal denigrates. Possibly much of the distress rose from the breakdown of the friendship between Michael and Finn and the breakdown of the living arrangement as a whole.
Objectively viewed, the extreme distress the tenants say they experienced cannot have resulted from the actions of the landlords, who responded in detail to each allegation made against them. They too were distressed at some of the actions of the tenants, including the installation of a security camera.
Having heard the evidence, the Tribunal does not find that they acted in such a way so as to cause the extreme reactions the tenants described.
I started this decision by addressing the context of the tenancy. It was an unusual tenancy. The tenants obtained benefits from the arrangement – reduced and delayed rent. They fell out with Finn. The decided they could not continue living together.
This is not a case where the Tribunal should intervene. Feelings were injured on both sides. But I do not find proved breaches of quiet enjoyment such that the Tribunal should step in and award the tenants compensation. No doubt, things were said and done that each party might, on reflection, regret. But that is not enough to establish a case for compensation for breaches of the RTA in the context of these tenancies.
Nor would the Tribunal award exemplary damages. That requires the tenants to proves harassment. Even if proved (and harassment has not been proved) the Tribunal would have to find that the landlords acted with intent; that they deliberately turned their minds to the act and set about to commit it. Bond
A final inspection is pending. If the parties cannot agree on the refund of the bond, the landlords will need to make an application against the tenants as the bond belongs to them in law until the landlords prove a claim against it. Result
The applications are dismissed. Name suppression
The tenants sought name suppression orders. No orders are made as the application are unsuccessful- see section 95A RTA.
The landlords did not seek a name suppression order.

Tenancy Tribunal case 4585069 — Harassment at 109 Kittyhawk Avenue, Wigram, Christchurch 8042

At a glance

Tenancy Tribunal case 4585069 — Harassment at 109 Kittyhawk Avenue, Wigram, Christchurch 8042

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions