What was the outcome of Tenancy Tribunal case 4595250?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4595250?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4595250?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4595250?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9280203-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4595250?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4595250?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4595250?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4595250?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9280203-Tribunal_Order.pdf.

12 Rhodes Avenue, Mount Albert, Auckland 1025 Tenancy Tribunal Case 4595250 — 14-day notice

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Reasons

This was a resumed hearing. At the initial hearing on 22 June there was not sufficient time to hear both the parties’ submissions and evidence. David Cray represented himself and Michele Cray at both hearings. Ms Pineda appeared with a support person at both hearings.

Ms Pineda has applied for an award of exemplary damages on the basis that the landlords have breached her quiet enjoyment of the property and have harassed her. She says that Mr Cray: a. Conducted very frequent inspections (more frequently than every four weeks); b. During one inspection touched her painting, removed it from the wall, and placed it on a chair; c. Drove his car quickly down the driveway, revved his engine, and shouted at her to move her bin; and d. Arrived unannounced to fix an outside water main.

Ms Pineda is the applicant and so the onus is on her to prove her claims to the civil standard; that is, on the balance of probabilities. Quiet Enjoyment/Harassment

A landlord must not interfere 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. Inspections

Ms Pineda claimed in her submissions to the Tribunal that Mr Cray had conducted inspections as follows:

Ms Pineda said that the constant inspections made her feel intimidated and harassed.

In response Mr Cray said that he had not wanted to conduct such frequent inspections but that each inspection had uncovered damage and so the ongoing inspections were necessary to check on the progress of repairs and to ensure no further damage had occurred.

Mr Cray said further that the inspections that were scheduled for 12 December 2022 and 16 February 2023 did not in fact take place, and so there was never less than four weeks between inspections.

Ms Pineda accepted that the inspection on 16 February 2023 did not take place. I have carefully reviewed the correspondence between the parties which shows that the inspection scheduled for 12 December 2022 did not take place either. It was deferred at the request of Ms Pineda.

I accept that Ms Pineda may have found it difficult and stressful to have ongoing regular inspections. However I am unable to find any breach by the landlord. Landlords have a right of entry pursuant to Section 48 of the Residential Tenancies Act 1986 which provides that the landlord may enter the premises: “for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours not more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks”

I have reviewed the time between inspections, excluding the two intended inspections that did not in fact occur. None of the inspections occurred more frequently than four weeks. There is no issue raised about the notice given or the manner that notice. I note from my review of the correspondence that the landlord’s correspondence was clear and polite at all times, and there were attempts by the landlord to accommodate Ms Pineda’s preferences as to dates and times. Inspection on 5 January 2023

Ms Pineda claims that at the inspection on 5 January 2023 Mr Cray inspected her bedroom in a disrespectful way. She says that he walked around the bedroom and took a painting off the wall and placed it on the bed. Ms Pineda says that she found this intimidating and upsetting. At the hearing Ms Pineda said that there was a small dent in the wall next to the painting and she thought that the landlord had removed the painting so as to inspect the wall in case there was further damage. She says that the dent had been caused by the previous tenant and that the landlord had no right to remove her painting.

At the hearing Mr Cray said that he simply could not recall having removed Ms Pineda’s painting.

I have reviewed the evidence filed and note that there is an email from Ms Pineda to Mr Cray dated 9 February 2023, over a month after the alleged incident, which states: “You went into my bedroom when I’ve asked you NOT to come inside. Then you walked inside and then you take out my Mexican paint that was on the wall. I have not touched since 5 th January on your inspection as you was trying to let me know about the dent is in the wall. Then you asked me about this and I respond straight to you, that was not me”

Mr Cray immediately replied, stating: “I have no recollection of touching your painting. Your complaint is news to me. In future please raise an issue at the time””

It is difficult to know whether Mr Cray did in fact touch Ms Pineda’s painting. She obviously feels very strongly about what happened but it is surprising that she did not raise the issue with the landlords until over a month later. I was not provided with any correspondence from Ms Pineda in response to Mr Cray’s denial.

However even if Mr Cray had touched Mr Pineda’s painting, even on Ms Pineda’s evidence it seems Mr Cray’s only intention would have been to more closely inspect an area that appeared to have been damaged. Such conduct, while not best practice, would not amount to “harassment” within the context of the RTA, unless there were repeated and intentional instances of such behaviour.

This claim is not proved. Driveway incident

Ms Pineda says that Mr Cray’s daughter lives in a separate property at the rear of her property, accessed by a driveway down the side. The properties share a bin and the bin has a designated area. On 8 January 2023 Ms Pineda says that she had placed the bin temporarily in the driveway for convenience while she was doing some gardening, when Mr Cray arrived to visit his daughter. She says that Mr Cray yelled at her “what are you doing with the bin!”, revved his engine, and drove fast down the driveway in an unsafe manner.

Mr Cray denies the incident. He says that the driveway is very narrow and it can only be navigated slowly, particularly when reversing. He admits asking Ms Pineda to move her bin but says that he did not do so in anger and did not yell or rev his engine. He filed a statement from his daughter, who was close by at the time, confirming the position. He says that Ms Pineda did not raise the issue until 9 February 2023 and referred me to that correspondence noting that Ms Pineda did not mention “yelling” or “revving” in her correspondence or at all until the claim was filed in the Tribunal.

Mr Cray attended two hearings on this matter. At all times he was softly spoken, polite and calm, even as he was frequently interrupted by Ms Pineda. He did not present to me as a person who easily angers or raises his voice.

This claim is not proved. Water leak repair

Ms Pineda says further that another incident occurred on 12 June at 10am. She says that her dog barked when she looked outside she discovered that the landlord was repairing a water main outside. Ms Pinda had reported a leak a few days before.

Ms Pineda called the police in relation to the incident on 12 June and received a a “New Zealand Police Acknowledgement Form” noting her report, although the police did not attend.

Mr Cray said that he received notification of the leaking tap some days before and attended to the repair, with a labourer, as soon as he was able. He says that he and the labourer were outside in the driveway, and that the driveway is for the exclusive use of the rear tenant.

This claim is also not proven. The landlord had an obligation to repair the water main and did not need to give notice to the tenant. There is nothing to suggest that he was harassing the tenant. Ongoing issues

It was very clear at both hearings that the relationship between the parties has completely broken down. Both indicated that further claims might be filed.

At the resumed hearing I noted that further evidence had been filed in relation to what appeared to be a claim by one or both parties relating to flooring and guttering (and potentially other matters) but I did not have any further application/s before me at that time. I indicated that I would only deal with the tenant’s application as filed and that any additional claims would need to set down for hearing separately.

For completeness I note that the tenant has filed further evidence in relation to electricity and water use. These issues appear to have already been dealt with by Adjudicator Kee in matter TT4550611.

As the tenant has not been the successful party, I have not made orders suppressing the tenant’s name and have not refunded the filing fee.