What was the outcome of Tenancy Tribunal case 4687396?

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

How much money was awarded in case 4687396?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687396?

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

Where can I read the official tribunal order for case 4687396?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9629368-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4687396?

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

How much money was awarded in case 4687396?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4687396?

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

Where can I read the official tribunal order for case 4687396?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9629368-Tenancy_Tribunal_Order.pdf.

1 Hurworth Place, College Estate, Whanganui 4500 Tenancy Tribunal Case 4687396 — 14-day notice

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Reasons

Both parties attended the hearing.

The landlord made an application to terminate the tenancy because the tenant has threatened to assault the landlord’s agent. See section 55(1)(c) Residential Tenancies Act 1986 (“RTA”).

The tenant made an application for exemplary damages because the landlord gave notice to terminate the tenancy when it was not entitled to do so. See section 60AA RTA.

The tenant has also applied for compensation and exemplary damages because the landlord has breached her quiet enjoyment. See section 38 RTA. Standard of proof

In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the parties must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.

Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.

By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” Termination – section 55(1)(c) RTA

The landlord provided evidence and the tenant accepted that: a. On 4 September 2023 the tenant sent a text to the landlord’s agent including the following threat: “ill get people to come fuck with your house and kids like that”. b. On 7 September 2023 the tenant sent a text to the landlord’s agent including the following: “I’m not moving out and if this is all because of you look the fuck out... Look the fuck out bitch.” c. The tenant has sent a number of texts and emails to the landlord’s agent using abusive language.

Section 55(1)(c) RTA provides that on any application made to it under this section by the landlord, the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied that the tenant has threatened to assault any agent of the landlord.

The Tribunal accepts that the landlord’s evidence demonstrates that the tenant threatened to assault the landlord’s agent.

The Tribunal may refuse to make the order sought by the landlord if it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which section 55 RTA applies. See section 55(2) RTA.

The High Court has determined that while a threat cannot be undone or remedied, the Tribunal retains the power to refuse to make an order terminating the tenancy if it is satisfied that the landlord has been compensated for any loss arising from the breach; and it is unlikely that the tenant will make further threats to assault the landlord’s agent.

In the circumstances of this case, the landlord has not suffered any loss for which the tenant should pay compensation.

In determining the exercise of the discretion in section 56(1)(c) RTA, the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: “Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: a. The history of the tenancy. b. Whether there has been a persistent failure after repeated warnings. c. Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.”

In this case, the threat came as a result of an argument with the landlord and a history of conflict in a multi-occupier complex. The tenant also has had serious conflict with a former partner whose appearances at the complex has exacerbated these issues. The tenant has taken legal steps to make sure that the former partner cannot now legally come onto the property.

There is no history of prior threats or threatening behaviour by the tenant during the tenancy of nearly a year.

The tenant responsibly acknowledged that the threat was made deliberately because she was very upset. She acknowledged at the hearing that the making of such a threat was a serous matter which the landlord’s agent took seriously. She apologised to the landlord at the hearing and by text message on 7 September 2023, but continued to send the landlord abusive text messages.

There is no evidence that the landlord was in any way responsible for the tenant’s behaviour. As the tenant admitted at the hearing, “she just lost it”. However, by unlawfully issuing a notice to terminate the tenancy on 14 days’ notice, the landlord did exacerbate the ferocity of the tenant’s further communications.

Having considered the facts of this situation and the matters above, I believe that termination of the tenancy is out of proportion with the single texted threat. I am satisfied that the tenant is aware of the seriousness of her action and that she will not resort to such threatening behaviour again.

As noted at the hearing, should she do so then the Tribunal would be unable to come to the same conclusion that the tenant will not make further threats. In such a situation, termination would be all but inevitable.

The landlord’s claim is dismissed. Tenant’s claim for the landlord acting to terminate the tenancy without grounds

Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.

Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.

The landlord issued a notice to the tenant on 6 September 2023 to terminate the tenancy on 14 days’ notice on the basis that the tenant had threatened to assault any agent of the landlord.

The landlord could not point to a section in the RTA which authorises a landlord to give a tenant such a notice. To terminate a tenancy in this situation, the landlord is required to make an application to the Tribunal under section 55(1)(c) RTA. It is then for the Tribunal to determine whether termination is appropriate.

The landlord’s notice was therefore invalid.

For the landlord to have committed an unlawful act, the landlord must have given the notice “knowing they are not entitled to do so”.

The landlord explained that it believed it was entitled to issue the notice but could not point to any provision in the RTA which gave them the required legal authority.

A professional property manager is deemed to know the law, specifically the RTA. The District Court in TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 confirmed that “Like all citizens a landlord is deemed to know the law. Parliament’s intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”

The landlord has committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

Essentially these factors require a consideration of the gravity of the unlawful act: that is, aggravating and mitigating factors. When considering the factors, it should be kept in mind that the object of exemplary damages is to punish and deter, not to compensate the victim of the unlawful act. However, if the effect of the unlawful act has been particularly severe on the victim, then this is likely to be an aggravating factor and, if it has had little or no effect, it will be a mitigating factor.

In this case, the tenant obtained advice and told the landlord that the issuing of the notice was invalid. The tenant did not move out and so has not suffered any detriment.

The landlord was under considerable stress because of the tenant’s threat and abusive correspondence. By a very fine margin, I am not satisfied that in these circumstances it would be just to award exemplary damages against the landlord.

The tenant’s claims for exemplary damages and compensation for the landlord’s unlawful act is dismissed. The tenant’s claim for breach of her quiet enjoyment

The tenant was vague in her claims for the landlord’s breach of her quiet enjoyment. She was unhappy with the landlord repeatedly communicating with her over breaches of her tenancy agreement and believes another tenant is interfering with her privacy.

It is not a breach of a tenant’s quiet enjoyment for a landlord to contact the tenant over breaches of her tenancy.

The tenant provided no proof in support of her claim regarding another tenant. I am not persuaded on the balance of probabilities that the tenant has made out her claim.

The tenant’s claim is dismissed. General

The Tribunal appreciates the stresses and conflicts which will almost inevitably arise where there are a number of tenancies sharing a complex of different dwellings in close proximity. However, this does not excuse or justify the issuing of threats or the use of abusive language. The landlord’s agent is entitled to be protected from such behaviour.

The tenant needs to be aware that she has avoided being evicted by a narrow margin and that should she repeat or continue with her behaviour, the landlord is entitled to make a further application to the Tribunal to end the tenancy.

The tenant advised that she was looking for new accommodation so that she could remove herself from her current, unsatisfactory environment. The landlord had agreed to help her. It is to be hoped that both parties are successful so that the conflict between them can be resolved.

As neither party has had success with their applications, it is appropriate that neither party reimburse the other for the filing fee.