What was the outcome of Tenancy Tribunal case 4638831?

The tribunal order states: Impression Real Estate Limited as agent for Jeyanthi Thiagalingam must

How much money was awarded in case 4638831?

Compensation: $256.54 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Loss Of Amenity - No Intercom: $267.14 awarded to tenant

What type of tenancy dispute was case 4638831?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment, Leaks, Unit Titles.

Where can I read the official tribunal order for case 4638831?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9690676-Tribunal_Order_Redacted.pdf.

What was the outcome of Tenancy Tribunal case 4638831?

The tribunal order states: Impression Real Estate Limited as agent for Jeyanthi Thiagalingam must

How much money was awarded in case 4638831?

Compensation: $256.54 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Loss Of Amenity - No Intercom: $267.14 awarded to tenant

What type of tenancy dispute was case 4638831?

The primary dispute was 14-day notice. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment, Leaks, Unit Titles.

Where can I read the official tribunal order for case 4638831?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9690676-Tribunal_Order_Redacted.pdf.

NO ADDRESS, NO ADDRESS Tenancy Tribunal Case 4638831 — 14-day notice

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Reasons

. All other claims are dismissed. DescriptionTenant Loss of amenity - no intercom$267.14 Compensation to alleviate loss of amenity - cell phone$256.54 Filing fee reimbursement$20.44 Total award$544.12

REASONS:

Claims and awards in Tenancy Tribunal application 4638831. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Loss of amenity - no intercom	$267.14	Loss of amenity - no intercom
Compensation to alleviate loss of amenity - cell phone	$256.54	Compensation to alleviate loss of amenity - cell phone
Filing fee reimbursement	$20.44	Filing fee reimbursement

The tenant attended the hearing for herself. 1

The landlord’s agent, Impression’s property manager, customer relations manager, and chief executive officer attended for the landlord. For convenience, I will refer to the parties as “tenant”, “landlord”, or “landlord’s agent”.

The tenant claims the landlord failed to repair her apartment’s intercom and interfered with her reasonable peace, comfort, and privacy to the level of harassment. Background

The tenancy began on 16 April 2020 and is continuing, although at the hearing, the landlord’s agent confirmed it had sent the tenant a notice terminating the tenancy on the ground that one of the landlord’s family members wished to move into the premises.

The apartment is located in a large complex in Downtown Auckland. The complex is run by a body corporate.

The tenant has health challenges including debilitating osteoarthritis and agoraphobia. Consequently, among other things, the tenant has her groceries delivered to her address. She can also suffer distress when people want to enter her apartment. To alleviate the possible distress she has asked the landlord’s agent to give her plenty of notice of inspections and to carry out inspections when she is away from the apartment.

I summarise some of the main events in respect to entries into the apartment and the faulty intercom. I do not set everything out in detail, although I have considered all of the emails and other material the parties have submitted. Entries into the tenant’s apartment

The tenant has brought two earlier claims to the Tribunal in the last 12 months. These were instigated by the body corporate’s building manager and its agents unlawfully entering the tenant’s apartment. 1 I heard this matter on 20 November 2023.

In its decision of 20 December 2022, 2 the Tribunal ordered the landlord to pay the tenant $300.00 compensation for contractors and the building manager unlawfully entering the tenant’s apartment. The Tribunal found that although neither the landlord or the landlord’s agent unlawfully entered the premises, “the landlord, as a member of the body corporate themselves, must ensure that any agents of the body corporate act in a way that does not result in a breach of the tenant’s rights”. 3

In its decision of 6 July 2023, 4 the Tribunal ordered the landlord to pay $700.00 in exemplary damages for unlawful entries by a plumber, and by the building manager who entered with the body corporate’s contractors and the landlord’s agent’s new property manager to assist with an intercom fault despite the body corporate forbidding the building manager from entering the tenant’s apartment at all.

On 14 June 2023, the landlord’s agent’s new property manager sent a notice for a routine inspection for 16 June 2023.

The tenant responded, asking for the inspection to be brought forward to 15 June when she would be away from the apartment.

The new property manager agreed to the 15 June date. He went to the apartment on the 15 th but couldn’t conduct the inspection because he had forgotten the key. The property manager and the tenant then agreed the inspection could be done on Wednesday or Thursday the following week (21 or 22 June 2023) between 10:00am and 3:00pm when the tenant would again be away from the apartment.

The tenant then explained that poorly arranged or executed inspections could cause her severe psychological problems. Consequently, she had arranged special terms with the previous property manager. The tenant explained the special terms in an email: Thanks for that Jason I really appreciate it. [the property manager having agreed to delay the routine inspection until the following week] Just to give you a little bit of background information, I suffer with extreme anxiety which brings on problems with feeling like I'm being overcrowded and my space being invaded which is the reason why I was said to you the other day that I would prefer to be away from home when people turn up to my place. I also have problems when I feel like things have been given to me last minute. 2 [Tenant] v Impression Real Estate As Agent For Jeyanthin Thiagalingam [2022] NZTT 4426042. 3 Ibid at [14]. 4 [Tenant] v Impression Real Estate As Agent For Jeyanthin Thiagalingam [2023] NZTT 4550322. I know, understand, and respect the fact that you are only legally required to give 48 hours notice for inspection, but I was wondering for future inspections that you can take over what Karan and I had in place please for the purpose of my settling my mind and giving myself time to process what's happening and not making everything feel like it's happening too fast which can have and have led to panic attacks. It's ok if you can't I will try and be mindful of that but Karan had it where he was sending out the inspection notice at least a week if not ten days ahead of time.

The property manager responded sympathetically: As we have recently changed our procedures around inspections, I’d like to make you aware that either Myself, my college Josiah or my college Manpreet may come inspect at different times. Just to clarify - still every 3 months and only one of us will come per inspection. Could I ask if there is any other way, I can assist you to prevent increasing your anxiety? Thanks Jason

The tenant clarified that the important thing was that she be kept well-informed of what would be happening: I am someone who doesn't like to be kept in the dark or lied to. I also operate better when there is routine and structure in place. IE when the rules are being followed. So as long as I am being told what is happening before it happens in plenty of time possible, I should be ok.

On 19 June 2023, despite the tenant’s clearly asking that the inspections should be on Wednesday or Thursday, the property manager sent a notice for the inspection to be conducted on Friday 23 June 2023. The tenant responded that requesting the inspection be done on Wednesday or Thursday.

Consequently, the inspection ended up being done on 21 June 2023. After the inspection, the property manager sent the tenant a 14-day notice for uncleanliness. He advise reinspection would be conducted on Wednesday, 5 July 2023 (14 days later). However, the property manager did not arrive on the appointed day, apparently due to being ill.

The Tribunal delivered its second decision adverse to the landlord on 6 July 2023, including an order that the landlord must pay the tenant $700.00. After the decision, the tenant emailed the landlord’s agent about payment, but received no response. She became increasingly anxious about the lack of response.

About a week afterwards, having had no reply, the tenant demanded payment and attended the landlord’s office in person. That did not go well. Reportedly, the landlord’s agents staff felt threatened by the tenant’s actions. The landlord’s agent subsequently issued the tenant with an antisocial behaviour notice for the incident.

On 15 July 2023, the tenant issued a trespass notice against the building manager.

On 19 July 2023, the property manager sent a notice for the re-inspection to occur on Friday 21 July 2023. Not surprisingly, the tenant was aggrieved by being given only 48 hours’ notice. While the notice complied with the Residential Tenancies Act 1986 (RTA), it was not as preferred at least a week in advance or on a Wednesday or a Thursday when the tenant would be out.

The tenant emailed: This is a breach of our agreement, so I am not going to give you permission to have access on Friday”.

The property manager replied:

How is it that you think I am breaching ?

Sorry I don’t understand. Kind regards

The tenant replied: I am not getting onto a discussion over this Jason. Read pass emails. And both court orders and figure it out yourself. If you are still having trouble call Tenancy Services. I would much rather you take this to mediation and then court than for me to keep explaining myself to you. Feel free to bring Rishabh with you to mediation. Either way, you DO NOT have permission to enter on Friday 21st of July at 11am.

Subsequently, the landlord’s chief executive officer sent an email on 19 July 2023 giving notice that a re-inspection would take place on Thursday 27 July 2023.

The tenant responded, “That's all I was after in the first place. I don't understand why I have to do this to get you to listen” but that the inspection didn’t have to happen because the 14-day notice was no longer valid.

The chief executive officer emailed that it would be taking a case to the Tribunal.

The tenant applied to the Tribunal on 27 July 2023. The landlord applied to the Tribunal on 10 August 2023. Faulty intercom

The tenant’s intercom which enables visitors to communicate with the tenant’s apartment from the front door of her apartment building, was repaired on 25 May 2023. 5 However, the intercom stopped working again and the tenant reported the problem on 24 June 2023.

On this occasion, the body corporate whose responsibility it was to repair the intercom decided it was not economic to repair the intercom because the building’s intercom system was obsolete and a whole-of-building upgrade was needed. Naturally, such an upgrade will take considerable time to implement and there is no date on the horizon for when the new system will be installed.

The landlord reported the body corporate’s stance on the repair on 7 July 2023 and offered to help the tenant to find a more suitable premises, but the tenant declined.

Consequently, the tenant has suffered considerable inconvenience with deliveries. She has purchased another cell phone to alleviate the problem.

The landlord has initially applied for termination based on the alleged anti-social behaviour incident. However, at the hearing the landlord confirmed it would proceed with any claim against the tenant, but only defend the tenant’s claims.

The issues for determination are: a. Did the landlord fail to maintain the intercom? And if not, should the tenant nonetheless be compensated for loss of amenity? b. Did the landlord interfere with the tenant’s reasonable peace, comfort, or privacy?

Did the landlord fail to maintain the intercom?

The building’s intercom system is obsolete and is not going to be repaired.

However, the intercom was very important to the tenant because of her disabilities.

The tenant has had to purchase a new cell phone to try to overcome the difficulties caused by not having a cell phone. 5 See ibid at [16]. Legal principles

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...

Landlords are liable for defects that they have knowledge of.

They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 6 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 7 “...the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”

Landlords also have an obligation to repair things that are apparent from observation: 8 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation... Discussion

The apartment’s intercom does not work. It follows, the premises are not maintained to a reasonable state of repair. 6 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 8 See n 3.

The landlord was required to repair the intercom within a reasonable time. In this case, the quantification of a reasonable time is complicated by the fact the landlord cannot carry out the repair. Only the body corporate can. The landlord can only proactively advocate for the repair to be carried out in a timely way. If the landlord is passive and does not agitate for the repair to be done, the landlord may be in breach of its duty to repair.

I am not satisfied on the balance of the probabilities that the landlord has failed to repair the intercom within a reasonable period of time in this case given its hands are tied.

It remains, however, that the tenant has lost the full amenity of the premises. For her, the intercom was a particularly important part of the tenancy. As the tenant explains: Being told that this is an outdated system and is not going to be fixed any time soon is of great concern for me. I suffer with anxiety and leaving to go out to places to get my groceries and other things for daily living does not happen so I rely on that intercom working so I know when I can go downstairs and meet with the delivery people. Not for convenience but for safety. I end up stressed and frustrated when groceries get returned to the store because they think that I am “not home” when they have come to deliver. Causing my frustration to get taken out on call centre staff.

The tenant’s disabilities made the intercom especially important to her. That is something that it is appropriate to factor into an assessment of loss of amenity. 9

There is an implied term in the tenancy agreement that the landlord will provide full amenity in the premises. If the landlord cannot provide the full amenity in some significant respect (as opposed to some trifling thing) then the tenant should be compensated for her loss of amenity and related costs.

I find the landlord has failed to ensure the tenant has full amenity in a significant respect by being unable to maintain the intercom.

I calculate the loss of amenity at 5 per cent, which is $22.00 per week. The relevant period is from 24 June 2023, the date the disrepair was reported, to 25 September 2023, when the tenant received her new cell phone.

The landlord should pay for the cost of the cell phone because that was needed to restore a similar convenience to that which the intercom provided. The cost of $245.54 is probably comparable to the cost that might have been anticipated for repairing the intercom. 9 See for example the Convention on the Rights of Persons with Disabilities. Did the landlord interfere with the tenant’s peace, comfort, or privacy?

The tenant submitted in respect to her medical condition: I have a full set of medical notes from Dr Niraj Gundawar who is the GP/Psych Registrar for Primary Mental Health Wellness team, that if requested, I can produce them with this application, however the point that I am wanting to highlight says “She is presenting with anger, irritability, anxiety, panic attack, agoraphobia to the extent that she stopped leaving her home alone and goes to supermarket once a week or so with friend as becomes very sensitive to any triggers, people and can react with extreme anger and in the past been taken to ED and now she is aware consequences and wants to avoid ED.”

The tenant submitted several memoranda. In her memorandum uploaded on 10 August 2023, she says: I believe that the failed room inspection with a 14 day to remedy notice, the antisocial behaviour notice and the "20 questions" game of simple maintenance was all done out of petty behaviour because of them being held accountable to what they should be doing in accordance with the law. This is because I was choosing to take action of bringing to their attention of the illegal behaviour of apartment manager according the Unit Titles Act. He is the one that thinks that it is ok to let himself and his contractors into my room without the proper notice. All of this is putting pressure on me to feel that I have to move out. This has led me to feel bullied into making lifestyle decisions that I am not ready to make and to simply say “no” to not fixing the intercom without helping find a solution is what has caused me to become unwell and interfere with my anxiety. And this is what I call harassment. On the other side of this as much as I have looked, I can’t move out as there is nowhere to move too. Even if there was it is not as simple as it sounds. I can’t move any further out to where I am now because of because of the agoraphobia that I have, I will also need to find people to help me move because of the arthritis that I have in both my knees and my back. Never mind the fact that they all have lives outside of work. All I have ever wanted was to work with Impression Real Estate and not against them but it seems like everything that I have done to try and make my environment a peaceful place to live has been shut down and filled with stress.

The tenant also considers the landlord’s agent was interfering with peace her by its email of 28 July 2023 by asking her to provide video evidence after reporting a shower problem. The landlord’s agent had emailed: Hi [tenant], As Jason is away this has been forwarded to me. Could you please send me a video so I can check if this would be your actual shower issue or possibly the plumbing in the building, then ill check with a plumber Thanks,

In the tenant’s view, she should not have “been asked for photo and video proof that they need fixing”.

The tenant also considers the landlord’s actions such as taking proceedings in the Tribunal are an interference.

On the other hand, the tenant’s difficulties have caused some of the landlord’s agent’s staff considerable distress. One staff member emailed the chief executive officer: Good morning Rishabh, I want to bring to your attention the serious stress the above tenant is causing me. She continues to question or challenge everything we do, finds blame to try and cause conflict for us and its an ongoing issue. Yesterday she declined to let us go ahead and arrange a reinspection that she had previously agreed too via email with you. I do not want to deal with a tenant like this, she makes my job extremely difficult and has been causing me a lot of emotional stress since I took over this portfolio Thank you Legal principles

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. 10

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. 11

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". 12 10 RTA, s 38(2). 11 RTA, s 38(3). 12 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

Black’s Law Dictionary 13 defines “harassment” as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

The New Oxford Dictionary of English“ 14 defines “harass” as: “subject to aggressive pressure or intimidation”. Discussion

The property management company’s steps on behalf of the landlord were in accordance with the RTA and ordinary business practice. It is the landlord’s agent’s job to ensure among other things that the premises are maintained to a reasonable standard of repair and are kept reasonably clean

In this case, the tenant has disabilities which the landlord’s agent’s staff did heed for the most part, albeit not perfectly all the time. One occasion where the landlord’s agent did not take adequate regard of the tenant’s disabilities was the property manager’s email of 19 July 2023 giving only 48 hours’ notice of reinspection. That was obviously going to upset the tenant, but the very same day, the CEO involved himself and changed the inspection date to a much later date and to one of the tenant’s preferred entry days.

The tenant has significant disabilities, which she faces courageously. But on the other hand, the landlord has generally respected the tenant’s dignity and treated her compassionately and professionally. I say “generally” because there have been oversights in following previously accepted special terms to accommodate the tenant’s disabilities. But where a landlord has generally sincerely accommodated a tenant’s disabilities, it would be inapt to punish isolated failings. The staff of the landlord’s agents are only human and also have a right to some compassion and understanding.

Whilst I can understand that the tenant’s feeling aggrieved by the 19 July 2023 notice for instance, the Tribunal must be cautious in finding that a landlord who complies with the provisions of the RTA is nonetheless interfering with tenants’ reasonable peace, comfort, or privacy of the tenant in their use of the premises. Property managers should be able to simply do their job, so long as they do not abuse their powers under the RTA. 13 Bryan A Gardener (ed) Black’s Law Dictionary (8 th ed, West Group, 2004). 14 Patrick Hanks (ed) (Clarendon Press, Oxford, 1998).

There might be circumstances where a property manager’s unfair, repetitious, or provocatively worded communications to tenants might breach s 38. This case does not raise such circumstances. Conclusion

The tenant’s claim that the landlord interfered with her reasonable peace, comfort, or privacy is dismissed.

The landlord should continue however to respect the tenant’s wishes for special terms for inspections and reasonably accommodate the tenant’s disabilities where that does not excessively interfere with its operations. In that regard, it is hoped both parties are patient and compassionate to each other. Filing fee

The tenant has substantially succeeded in her claim. The Tribunal orders the landlord to reimburse her for the filing fee. Non-publication

The tenant seeks non-publication pursuant to s 95A(1) of the RTA.

The tenant has succeeded in the application. There are no factors such as the public interest in open justice that displace the statutory presumption against publication.

Reasons

REASONS:

Claims and awards in Tenancy Tribunal application 4638831. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Loss of amenity - no intercom	$267.14	Loss of amenity - no intercom
Compensation to alleviate loss of amenity - cell phone	$256.54	Compensation to alleviate loss of amenity - cell phone
Filing fee reimbursement	$20.44	Filing fee reimbursement