What was the outcome of Tenancy Tribunal case 4709230?

The tribunal order states: Neville August is removed as a party.

How much money was awarded in case 4709230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4709230?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4709230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10119450-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4709230?

The tribunal order states: Neville August is removed as a party.

How much money was awarded in case 4709230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4709230?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4709230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10119450-Tribunal_Order.pdf.

92 Simpson Road, Papamoa Beach, Papamoa 3118 Tenancy Tribunal Case 4709230 — Rent arrears

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Reasons

Both parties attended the hearing.

In March 2022, the parties entered into a “Flat/house – sharing agreement”. Neville August is not named as a landlord and is removed as a party to the claim.

On 22 November 2023, the Tribunal made an order that the arrangement was a residential tenancy and that the Residential Tenancies Act 1986 applied.

The hearing was adjourned for the substantive claims to be heard. The landlord claimed rent arrears of $2,214.00 and power of $128.78. The tenant claimed exemplary damages for not lodging the $1,000.00 bond and for breach of quiet enjoyment. Landlord’s claim:

The flat the tenant was renting is a self-contained unit on the ground floor of a two-storey house. The flat has a separate electricity meter and the landlord said it is rated as two dwellings. Therefore, it is unlikely that any issues arise under s 78A RTA about the lawfulness of the premises.

Rent: The tenancy started on 25 March 2022 (a Friday). The landlord gave the tenant notice for the tenancy to end on 13 October 2023. The tenant vacated on 6 October 2023.

The landlord says the last rent payment was on 12 September 2023 (a Tuesday). The payment date does not align with the rent period of Friday-Thursday.

The landlord has not provided a full rent summary from the start of the tenancy, but only a record of the dates after 12 September that rent was not paid. It is not possible to accurately calculate rent arrears with the limited information provided.

The landlord says that rent payment days have varied during the tenancy, and it is possible that rent was being paid part-way through the rent week. If so, rent would be paid up to 14 September. It is reasonably unlikely that rent paid on 12 September for the rent week from 15-21 September. However, because of the uncertainty, and because the landlord has not provided an adequate rent record, I have assumed that rent is paid up to Monday 18 September (a week after the payment date).

The landlord’s termination notice was invalid. Therefore, I have only calculated rent to the date the tenant vacated. The landlord cannot complain that the tenant did not give sufficient notice of termination when her own notice was invalid.

Rent owing from 19 September to 6 October is $1,285.71. The tenant accepted that he owes at least 2 weeks’ rent. The amount calculated is an additional 4 days.

Power: Under the agreement, the tenant was to pay any amount over $150.00 per month. The amount of $128.78 claimed is proved. Tenant’s claim Bond:

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (s 19(1) RTA). Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 (s 19(2) and Schedule 1A RTA).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 (s 109(3) RTA).

The failure to lodge the bond was intentional. The landlord has previously rented out the flat under a residential tenancy agreement. She says she chose a house- sharing agreement in this case as she wanted a more friendly, less formal, arrangement. However, there is no evidence that the arrangement operated any differently from a standard tenancy, and the landlord did not seek any expert advice. Therefore, I do not accept that the explanation given for the house- sharing agreement provides a defence.

Because the bond was in dispute due to the rent arrears claim, the non- lodgement had limited practical effect on the tenant. There is, however, a strong public interest in landlords complying with their obligations under the RTA (and also in not entering into arrangements that avoid its provisions). A common starting point for a first breach is around one-third of the maximum. This amount closely matches the amount owing for rent and power, after deducting the bond. Harassment

A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises (s 38(2) RTA). Although the previous order refers to breach of “quiet enjoyment”, the relevant provision relates to “peace, comfort, or privacy”. 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 (s 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.

The tenant’s claim is based on two incidents, in June 2022 and August 2023. There is a 12-month time limit on claims for exemplary damages, so damages could not be awarded for the 2022 incident, although it is potentially relevant in assessing the later incident in 2023.

In relation to the first incident, the tenant says the landlord’s husband came to the front door to give him a termination notice and pushed him in the chest (while holding the notice). The landlord’s husband says he delivered the notice and as he backed away from the door the tenant came towards him. He says he put out his hand to keep the tenant at a distance and the tenant walked into his hand. The Police were called, but no charges were laid, or warnings given.

Although there was some minor discrepancies between the evidence given by the landlord and her husband, the tenant has not proved on the balance of probabilities that he was assaulted.

The second incident occurred when the landlord and her husband arrived home to find the tenant’s car blocking the driveway. After a short wait, the landlord knocked on his door and asked him to move the car. As the tenant came out, words were exchanged with the landlord. The tenant says the landlord’s husband came up behind him acting provocatively, egging him (the tenant) on to hit him.

The landlord and her husband say that the tenant was yelling as he came out of the flat. They say the tenant then slapped the husband with two hands on either side of his face. He was not hurt. The husband then asked the tenant whether he (the tenant) wanted to hit him. Both parties agree that the landlord then told both the men to stop their behaviour.

The tenant accepts that he slapped the husband and, even on his version of events, he was at least as much at fault for the incident as the landlord and her husband, if not more so. Therefore, he has not proved that he was badly treated or harassed. Summary

In conclusion, the landlord has proved some rent is owed, but not the full amount claimed, as well as some electricity costs. The tenant has proved an unlawful act in relation to the bond, but not harassment. After the bond held by the landlord is deducted, they each owe the other roughly similar amounts. The practical way of dealing with this is to allow the landlord to retain the bond, and not make any further monetary orders.

As both parties have only been partially successful, I have not made any orders in relation to the filing fees or name suppression. J P Smith 26 March 2024