What was the outcome of Tenancy Tribunal case 4676988?

The tribunal order states: Leanne Yan Lui must pay Alister James Nichol $870.44 immediately, calculated

How much money was awarded in case 4676988?

Compensation: $100.00 awarded to tenant; Compensation: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4676988?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676988?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9971859-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4676988?

The tribunal order states: Leanne Yan Lui must pay Alister James Nichol $870.44 immediately, calculated

How much money was awarded in case 4676988?

Compensation: $100.00 awarded to tenant; Compensation: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4676988?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676988?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9971859-Tribunal_Order.pdf.

Room C, 6 Brosna Place, East Tamaki, Auckland 2016 Tenancy Tribunal Case 4676988 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 4676988 — net $870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation - failure to lodge bond	$100.00	Compensation - failure to lodge bond
Compensation - breach of quiet enjoyment	$750.00	Compensation - breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$870.44
Total payable by Landlord to Tenant	$870.44

Both parties attended the hearing on 13 February 2024. Jurisdiction

The Residential Tenancies Act 1986 (the Act) applies to every tenancy for residential purposes except as specifically provided (section 4). A party who contends that the Act does not apply has the onus of proving the supporting facts (section 10).

The landlord was renting her 4-bedroom/2-bathroom house to 3 other people. She retained 1 of the bedrooms for herself, and stored clothes and other personal items there. However, she accepted that she was mainly living at separate premises in Parnell with her son. The landlord would stay over at the premises at the weekend or during the week on a fortnightly basis.

Section 5(1)(n) of the Act provides that, where the premises continue to be used during the tenancy principally (i.e., mainly) as a place of residence by the landlord or the owner of the premises, or by any member of their family, the Act does not apply.

The test is not whether the premises are used as the landlord’s main residence, but whether the main use during the tenancy is as a place of residence by the landlord or a member of their family. However, absences by the landlord may be relevant to the inquiry.

In this case, the landlord chose to live elsewhere and visited the property occasionally, for example to perform garden maintenance or cleaning. The landlord was not, for example, forced to live elsewhere for extended periods by reason of her employment.

The landlord retained the use of a room, but it cannot be said the main use of the premises was to provide her with a place of residence. She was mainly living elsewhere, and even when she was in residence, the main use of the premises was as a rental property providing accommodation to her tenants.

I find that the Tribunal has jurisdiction and section 5(1)(n) of the Act does not apply. The tenancy

There was no written tenancy agreement of any kind. However, both parties agreed that the basic terms of the contract were that the tenant would rent a furnished room at a weekly rent of $220.00 (inclusive of power, water, and internet) with a 2-week “deposit” of $440.00.

The tenancy started on 14 December 2020 and ended on 8 March 2023 (about 3 months). The deposit (i.e., a bond) was returned to the tenant by the landlord on 5 March 2023.

Section 11 of the Act essentially prevents parties from contracting out of the Act’s provisions. Any agreement that is inconsistent with any provision of the Act is of no effect, unless the Tribunal is satisfied, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties and all other relevant circumstances of the case, that the inconsistency should be permitted (section 11(1)(b)).

In my view, this is an appropriate case for the application of section 11(1)(b). The parties were apparently content to enter into a very informal relationship that was undocumented. There seems to have been an advertisement which reflected the terms of the tenancy noted above, and that was all.

The parties cannot enjoy an informal and undocumented arrangement, and then criticise the other party for every failure to comply with the Act which inevitably follows. Tenants, as much as landlords, need to be aware of and assert their right to a written residential tenancy agreement containing the information required by the Act. At the same time, the Tribunal will be alert to the need to uphold basic safeguards under the Act where relevant. Evidence of repeated knowing failure to comply with the Act by either party may lead the Tribunal to adopt a stricter approach. Landlord’s application Defamation and business use

The landlord applied for compensation for mental harassment and false statements by the tenant. This claim does not relate to any cause of action within the Tribunal’s jurisdiction, which derives from the Act. While the Tribunal has a wide jurisdiction in contract law, it does not have any jurisdiction in the law of tort. A claim for defamation would need to be brought in the Courts.

The landlord also said that the tenant ran his sales business from her home. She said that strangers were accessing her home at any time of the day or night.

The tenant had an obligation to ensure that the premises were occupied principally for residential purposes. While there was some evidence that the tenant did run a business while living at the property, the focus was on one or two incidents when the tenant had customers visit him and an occasion when he was seen outside the property with merchandise. The evidence does not establish that the tenant’s main use of the premises was other than residential. Tenant’s application Privacy

The tenant complained that the landlord had set up cameras in the property, in breach of his reasonable peace, comfort and privacy (section 38(2) of the Act).

The landlord said the cameras were in the living room/kitchen and not in a bedroom. The purpose of the cameras was to avoid any theft or burglary at the premises. There had been a previous theft at the property which led to the cameras being installed.

I was shown screenshots from the cameras during the hearing. One of the cameras was trained towards the main entrance. It does not show much more than who is entering and leaving the premises. Another camera showed a wide- angle view of the entire lounge area. A screenshot was taken on 5 February 2023 at 12.53am showing the tenant sitting on the couch.

The tenant gave evidence that at 1am one Saturday night the landlord called from her Parnell property and told him to switch the lights off and go to bed. A text from the landlord at 12.52am on 5 February 2023 said: “Please go back to your room and sleep early. The living room is a public room that will affect other people’s rest”.

The landlord also recalled this event. She said the tenant would stay on the couch until 4-5am and this made it harder for other tenants to sleep. She was at the property and heard noise from the lounge. She checked the camera to see what was going on and went to the lounge, where the tenant was allegedly naked (this was disputed and is inconsistent with the screenshot). The landlord went back to her bedroom and texted the tenant, as noted above. She had no intention to breach the tenant’s privacy.

I can understand why, as a security precaution, the landlord might wish to monitor people entering and leaving the property. The living room camera, however, is harder to justify. The landlord said all the tenants were told about the cameras, but it is not clear if they knew their activities in the lounge were being monitored 24 hours a day. In my view, this was a breach of the tenant’s right to quiet enjoyment of the premises. On the other hand, it was not directed specifically at the tenant or with an intention to harm his interests. I am not satisfied it amounted to harassment.

It is unknown whether there were other occasions when the tenant’s privacy was unreasonably interfered with. It is probable, given the landlord had access to the cameras via her mobile phone. Tenants should be able to relax in the lounge area of residential premises without constant monitoring by the landlord. I view this as quite a serious breach of the tenant’s rights. I award $750.00 for breach of quiet enjoyment. Unlawful entry / lack of notice

The tenant said the landlord entered the premises without notice on 5 and 6 February 2023. He also complained that she allowed a stranger (who I will call Mr K) to enter the property. Mr K was a potential purchaser of the property who gave evidence at the hearing. He said he went to the property with the landlord. It does not seem the tenant was asked to give prior consent for the landlord to show the premises to potential purchasers.

As discussed above, the parties had a very informal arrangement. The landlord treated the property as her own home, where she could come and go as she pleased. As a landlord living in the same house, she did not think she needed to give notice to someone only occupying a room. This was a misunderstanding of the Act, but in my view, the landlord should not be punished for every infraction that arises from her error.

While the tenant criticised the landlord’s behaviour, his evidence did not elaborate on the effect on him of the landlord’s entry or how it affected his privacy or use of the premises (which, in any event, was being shared with others). I decline to award compensation for breach of section 48(3) of the Act.

For the same reasons, I decline to award compensation for the landlord’s failure to give the appropriate length of notice when terminating the tenancy on 5 January 2023. The parties’ agreement was that 2 weeks’ notice needed to be given. In fact, the landlord gave more than 28 days’ notice, with a request that the tenant vacate on 5 March 2023. The tenant received more than the notice he could have reasonably expected under the agreed terms. Unlawful premises

The tenant complained that the garage had been unlawfully converted into a sleeping area. The conversion seemed to be confirmed by the evidence of Mr K. The landlord said she had Council approval for the change of use.

Neither party presented any independent corroborating evidence about this issue. The scant evidence does not enable the Tribunal to conclude that the premises could not be lawfully occupied for residential purposes by the tenant.

It is difficult to see how, even if the conversion was unlawful, this would affect the tenant, who was not living in the garage. It would also have to be shown why, assuming the conversion was unlawful, that should mean the entire premises were unlawful residential premises.

The Tribunal retains a discretion under section 78A and is not obligated to award compensation, even where premises are found to be unlawful as defined in section 78A(2) of the Act. I am not satisfied that the premises, or any part of them, were unlawful, or if they were, that it would be appropriate to award any sum by way of compensation. Failure to lodge the bond

The tenant complained that the bond was not lodged with the Bond Centre. The lodgement of bonds pursuant to section 19 of the Act is a fundamental and basic duty on landlords (and their agents) who receive bonds. It is essential that the bonds of residential tenants are held by an independent third party.

Given the lack of understanding about her obligations, the landlord probably did not realise that the bond needed to be lodged. The failure to lodge the bond was not intentional. Further, there was in the event no harm to the tenant because the bond was refunded at the end of the tenancy.

For these reasons, on this occasion, I decline to award exemplary damages for failure to lodge the bond. I do, however, consider it is appropriate to award damages to vindicate the tenant’s fundamental rights. I award $100.00. Suppression and filing fee

The tenant has succeeded in establishing that the bond was not lodged and that there was interference with his quiet enjoyment. I award the filing fee.

Both parties requested suppression. The tenant has been more successful than the landlord, but I do not consider either party has been “wholly or substantially” successful (section 95A(1) of the Act). I decline to award suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4676988 — net $870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation - failure to lodge bond	$100.00	Compensation - failure to lodge bond
Compensation - breach of quiet enjoyment	$750.00	Compensation - breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$870.44
Total payable by Landlord to Tenant	$870.44

Both parties attended the hearing on 13 February 2024. Jurisdiction

I find that the Tribunal has jurisdiction and section 5(1)(n) of the Act does not apply. The tenancy

The tenancy started on 14 December 2020 and ended on 8 March 2023 (about 3 months). The deposit (i.e., a bond) was returned to the tenant by the landlord on 5 March 2023.

The landlord also said that the tenant ran his sales business from her home. She said that strangers were accessing her home at any time of the day or night.

The tenant complained that the landlord had set up cameras in the property, in breach of his reasonable peace, comfort and privacy (section 38(2) of the Act).

The tenant has succeeded in establishing that the bond was not lodged and that there was interference with his quiet enjoyment. I award the filing fee.

Tenancy Tribunal case 4676988 — Tenancy dispute at Room C, 6 Brosna Place, East Tamaki, Auckland 2016

At a glance

Tenancy Tribunal case 4676988 — Tenancy dispute at Room C, 6 Brosna Place, East Tamaki, Auckland 2016

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions