What was the outcome of Tenancy Tribunal case 4651550?

The tribunal order states: Anita Maree O'Dwyer must pay Deborah Anne Center as agent for David

How much money was awarded in case 4651550?

Cleaning: $225.00 awarded to landlord; Cleaning: $180.00 awarded to landlord; Property Damage: $115.00 awarded to landlord; Rent Arrears: $1,000.00 awarded to landlord; Replace Front Door Lock: $245.41 awarded to landlord

What type of tenancy dispute was case 4651550?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4651550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11012549-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4651550?

The tribunal order states: Anita Maree O'Dwyer must pay Deborah Anne Center as agent for David

How much money was awarded in case 4651550?

Cleaning: $225.00 awarded to landlord; Cleaning: $180.00 awarded to landlord; Property Damage: $115.00 awarded to landlord; Rent Arrears: $1,000.00 awarded to landlord; Replace Front Door Lock: $245.41 awarded to landlord

What type of tenancy dispute was case 4651550?

The primary dispute was Rent arrears. Related themes: Cleanliness, Property damage.

Where can I read the official tribunal order for case 4651550?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11012549-Tribunal_Order.pdf.

Unit/Flat 1, 59 East Coast Road, Caster Bay, Auckland Tenancy Tribunal Case 4651550 — Rent arrears

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Order

Claims and awards in Tenancy Tribunal application 4651550 — net $565.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,000.00	Rent arrears
Carpet cleaning	$225.00	Carpet cleaning
Cleaning	$180.00	Cleaning
Repair blind	$115.00	Repair blind
Replace front door lock	$245.41	Replace front door lock
Net award	$565.41
Total payable by Tenant to Landlord	$565.41

Anita Maree O'Dwyer must pay Deborah Anne Center as agent for David Mortensen and Judith Mortensen $565.41 immediately, calculated as shown in table below.

The Bond Centre is to pay the bond of $1,200.00 (6242657-001) to Deborah Anne Center as agent for David Mortensen and Judith Mortensen immediately.

The tenant’s application is dismissed.

The landlord’s application for exemplary damages is dismissed.

Both parties’ applications for representation costs are dismissed.

Reasons

Both parties attended the hearing which I held at North Shore on 29 October 2024.

The landlord has applied for rent arrears, compensation, exemplary damages, refund of the bond, reimbursement of the filing fee, and costs following the end of the tenancy.

The tenant has applied for exemplary damages for alleged landlord breaches and representation costs.

Both parties have provided considerable documentary evidence and submissions. I have considered everything placed before the Tribunal even if I do not specifically refer to it. Background

The tenancy started on 15 December 2018 and ended by Tribunal order dated 3 November 2023.The tenant vacated on 7 November 2023.

For the first 4 years or so, the relationship between the parties was cordial. The landlords are an elderly couple with Mr Mortensen having health issues.

The landlords (owners) lived upstairs and the tenant in separate premises downstairs.

When the Tribunal heard the applications in part, and made the possession order, the adjudicator noted in her background:

The tenancy began on 15 December 2018 and was amicable for a number of years. Both the landlord and tenant describe the relationship as being one of friendship.

This was important, given the living situation. The landlords own a large house, and the flat the tenant lives in, is part of the bottom floor of that house. There is a shared driveway, shared gardens, and the tenant and landlord live in close proximity.

In late 2022 or into 2023, the relationship soured. The exact cause of this in unclear, but it would appear that the landlord was unhappy with Mr Haines staying at the property for long periods, and they were unhappy with Mr Haines communicating with them, many times, rather than going through the property manager. The volume of communications was stressful for the landlords, particularly given the male landlord’s health issues.

It is accepted that there was a conversation in which the landlord said that she would like Mr Haines visits to be limited to three nights at a time. The tenant says that the landlord threatened to trespass Mr Haines if he stayed longer. The landlord denied that.

There are further allegations, set out in one of the 14-day notices of harassing text messages. On closer examination, it would appear this relates to a single text message on 28 June 2023, in which the landlord asked for Mr Haines’ last name (at that point, she knew him only as Neil).

The relationship reached the point where, on 3 July 2023, the tenant served two 14-day notices. The first related to mould and damp, and the second to a list of behaviours that the tenant wanted the landlord to cease, including:

The tenant accepts that following the 14-day notice the landlord stopped entering the patio to drop off mail, that it was agreed that the patio was the tenant’s exclusive area, and there were no further texts or requests for information.

Further, the landlord gave permission for Mr Haines to live in the premises for around 8 weeks while his motorhome was being repaired.

I note that the entry onto the patio, and the inspection of wardrobes during property inspections are not breaches of that Act.

The remaining issues were adjourned to be heard on 28 March 2024. That hearing was adjourned because the tenant tested positive for Covid-19.

Before another hearing was scheduled, the adjudicator took up a coronial appointment, so the applications were assigned to me. I held a hearing first on 12 June 2024. I granted the tenant’s application for representation; she wished to have Mr Haines represent her.

Mr Haines raised a jurisdictional issue at that hearing. He wanted the Tribunal to determine whether the tenancy fell under the Residential Tenancies Act 1986 (RTA) or whether it was an excluded tenancy.

That was an odd position for the tenant to take since I explained that if the Tribunal were to decline jurisdiction the range of potential remedies available to her in the Disputes Tribunal would be limited. Despite that, Mr Haines insisted on the jurisdictional issue being determined.

On 12 June 2024 I issued a decision, with reasons, in which I found that the tenancy fell under the provisions of the RTA.

I made time-tabling directions for the filing of submissions. The tenant did not comply exactly, or in the detail I expected (which the landlord party objected to), but I was satisfied that the hearing on 29 October 2024 could proceed; there was nothing that was any surprise in the tenant’s submissions that warranted a further adjournment. The applications The tenant’s application

The tenant has applied for exemplary damages under 7 heads of claim: •Section 12 – discrimination •Section 28 – a rent increase •Section 30 – landlord to keep proper records •Section 38 – quiet enjoyment •Section 45 – landlord responsibilities •Section 48 – landlord right of entry •Section 63 – entry without Tribunal order

The tenant has also sought compensation for damaged chattels she says need to be replaced and representation costs for Mr Haines. The landlord’s application

The landlord has applied for: •Exemplary damages for Mr Haines residing at the premises •Exemplary damages for the tenant/Mr Haines causing the landlords stress and harassment •Exemplary damages for non-compliance with routine inspection reports •Exemplary damages for failing to quit the premises •Exemplary damages for making a frivolous/vexatious application •Exemplary damages for the failure to allow entry for a tradesman to repair a leaking from a dishwasher •Unpaid rent following a rent increase •8 weeks’ rent for a period when Mr Haines admitted living at the premises •Carpet stain removal costs •Cleaning costs •The repair of a blind in the lounge •The replacement cost of a front door lock

The landlord has also sought costs for preparing the submissions and attending the hearings. Relevant legal principles – 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 actual losses and for the loss of enjoyment of the tenancy.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding 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, with intent, committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must consider the factors set out in section 109 RTA. Those factors are: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest. Analysis The tenant’s application

The tenant’s application for exemplary damages cannot succeed.

The matters the tenant refers to as discrimination do not satisfy the acts described in section 12 RTA as unlawful. Section 12(1)(a) RTA refers to Discrimination against any person in respect of the grant continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1991.

The tenant’s allegation of unlawful entry, verbal abuse, unnecessary noise and limiting Mr Haines’ ability to stay at the premises do not constitute discrimination as defined. The definition is a statutory one, referenced to the Human Rights Act 1991, not discrimination in the lay or ordinary sense.

A rent increase is not a defined unlawful act. If the tenant considered that the rent increase meant that the rent exceeded market rent, she could have applied for a market rent determination. Those applications are strictly time framed. Rather, the tenant’s challenge to the rent increase was based of what she considered was a lack of maintenance and a failure to address mould and therefore the increase was not justified.

There was no failure by the landlord to keep records. The tenant alleges that bond information was not kept. The bond is recorded in the tenancy agreement; it was sent to the Bond Centre; and the Bond Centre acknowledged receipt. Nothing more was required.

The tenant alleges multiple breaches of her quiet enjoyment. Exemplary damages can be awarded when there is a serious or sustained breach of quiet enjoyment that amounts to harassment.

Here, the parties enjoyed a cordial relationship up to the time Mr Haines arrived. Then the tensions began.

I find that Mr Haines has been the driver of the tenant’s claim. As sometimes happens in this jurisdiction, when non-legal representation is granted, the representative takes over and makes the application their own. Mr Haines presented the case as though he were the tenant, which he was not. In other words, he made it about him.

Yes, there were aggravations and tensions between the parties. I find these were largely driven by Mr Haines. It was his intervention that caused a long and friendly landlord-tenant relationship to sour. That in turn has meant that the relationship has broken down irreparably.

I do not find that the landlords or their agent breached the tenant’s quiet enjoyment as to amount to harassment. Yes, they were frustrated, but they had reason to be.

Hurt feelings or poor behaviour is not sufficient to constitute a breach of quiet enjoyment amounting to harassment.

That the Tribunal can make orders does not always mean it should. Context is important. The context here does not support of finding of any unlawful act by the landlords or their agent.

Mrs Mortensen gave brief evidence. Ms O’Dwyer gave no evidence at all. She left it to Mr Haines to speak for her.

Mrs Mortensen said she and the tenant had a good relationship and would often talk for a long time about work and other matters. They had a code; the tenant would text Mrs Mortensen who would then phone her to avoid the tenant incurring costs. She said everything changed when she expressed concerns about Mr Haines staying too often. He took exception to that and began staying more and more. With her husband unwell it was very stressful for them. She said, ‘Neil is a law unto himself’.

So too with the allegation that the landlords failed to repair and/or maintain the premises or comply with the Healthy Homes Standards (HHS).

The tenant complained of mould. That mould is present does not of itself establish any breach by the landlord. Mould can be caused by the way in which premises are used.

The landlord’s evidence shows that there were no problems before Mr Haines came on the scene – no complaints or unresolved mould issues. That was for about 4 years. Then, everything changed. The tenant kept the windows closed and the complaints began.

This tenancy does not have to comply with the HHS until 2025. The HHS have staged implementation dates, and the compliance date is different depending on when the tenancy started.

The tenant has failed to prove that the premises did not meet the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

Nor has the tenant proved that the landlord entered the premises unlawfully, or without an order of the Tribunal.

Again, the context here is important. The landlord’s evidence shows that the parties were friendly and informal in their dealings. The text messages produced in evidence largely support that. It changed after Mr Haines arrived. I have earlier recorded the previous adjudicator’s background commentary about this. Following the tenant’s 14-day notice the behaviour he complained of, previously not an issue, ceased. The notices achieved their purpose.

Section 63 RTA does not apply in this case. I do not find proved any unlawful entry by the landlords or their agent.

It follows that I do not find proved a claim by the tenant for damages to her chattels caused by mould. The mould was not a defect due to failed repairs or maintenance or a failure to comply with the HHS (which do not yet apply to the tenancy). It was more probably the result of the way in which the tenant used the premises over the last year of the tenancy.

Finally, I dismiss the claim for Mr Haines’ representation costs - $6,440.00. Section 102 RTA prevents the Tribunal from awarding costs, other than to counsel. As a lay representative, Mr Haines has no claim.

For these reasons I dismiss the tenant’s application. The landlord’s application

The landlord’s application for exemplary damages cannot succeed. Most of the claims for exemplary damages do not relate to any defined unlawful act by the tenant.

There can be no claim for Mr Haines staying with the tenant. Although the tenancy agreement limited the tenancy to one person, the evidence is in conflict about how long and when Mr Haines stayed. The landlord (the owner) agreed to him staying for 3 nights a week, and then for a period of 8 weeks while his motor home was repaired. The evidence does not establish that Mr Haines moved in permanently. He did not become a tenant.

There is no category of unlawful act for the tenant causing stress to the landlord amounting to harassment. That the tenant issued a trespass notice on the landlord was poor behaviour, but not an unlawful act (even if it was probably unenforceable). Nor is non-compliance with a property inspection an unlawful act; the appropriate remedy is a 14-day compliance notice followed by an application to terminate the tenancy.

The failure to quit the premises is an unlawful act. Here, the failure was a couple of days only. It was technically a breach, but I do not find the necessary element of intent by the tenant. By then it was Mr Haines driving things; it was more his failure than the tenant’s. His belief that the tenant did not need to quit until the rehearing and appeal period had expired was incorrect.

The same applies to the allegation that the tenant denied access for the landlord’s plumber to fix a leaking dishwasher from upstairs. That issue promptly resolved and again appears driven by Mr Haines.

And while the landlord considers that the proceedings are frivolous and vexatious, the threshold for the Tribunal to make such a finding is very high. Landlords and tenants should have open and unimpeded access to the Tribunal. Only very rarely would the Tribunal make such a finding.

The landlord’s remaining claims are proved.

The landlord has proved a claim for unpaid rent; the tenant refused to pay the increased rent amount. That was not an option. As I have noted, the appropriate way to challenge a rent increase is by seeking a market rent determination. The time frame for that has long passed. I make an order for rent arears of $1,000.00.

The landlord cannot claim interest on unpaid rent – the RTA does not provide for interest.

Nor can the landlord claim 8 weeks’ rent for when they agreed for Mr Haines to stay while his motor home was being repaired. There was no formal variation to the tenancy agreement, nor any other agreement that would amount to a variation of contract.

Based on the landlord’s documentary evidence, I find proved the claim for carpet stain removal in the lounge and bedroom. I find proved the claim for cleaning, for the repair of the blind in the lounge and for the front door lock replacement.

Although Mr Haines objected to these costs because the premises were going to be sold (they were sold on 15 February 2024, more than 3 months after the tenancy ended) the tenant’s statutory responsibility was to leave them reasonably clean, repair any damage, and return all keys. I find that she failed to meet those responsibilities. Objectively viewed, the claims were not to address fair wear and tear.

I dismiss the landlord’s agent’s claim for the cost of preparing submissions and attending the hearing for the same reason as I dismissed Mr Haines’ claim for costs. Each party is expected to bear their own costs for the presentation of their case in the Tribunal. Result

The tenant’s application is dismissed.

The landlord’s application for exemplary damages is dismissed.

The tenant will pay the landlord $1,765.41.

The bond will be paid to the landlord in full. After the deduction of the bond, the tenant will pay the landlord $565.41.

Both parties’ applications for representation costs are dismissed.

No award of the filing fees is made. The landlord’s application is only partly successful; the tenant’s application is unsuccessful. Name suppression

The landlord did not seek an order for name suppression. The tenant sought name suppression but is not entitled to an order as her application is unsuccessful – see section 95A RTA.

Order

Claims and awards in Tenancy Tribunal application 4651550 — net $565.41 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,000.00	Rent arrears
Carpet cleaning	$225.00	Carpet cleaning
Cleaning	$180.00	Cleaning
Repair blind	$115.00	Repair blind
Replace front door lock	$245.41	Replace front door lock
Net award	$565.41
Total payable by Tenant to Landlord	$565.41