What was the outcome of Tenancy Tribunal case 4711069?

The tribunal order states: The tenant’s application for the bond is allowed. The Bond Centre is to

How much money was awarded in case 4711069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711069?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4711069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10597117-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4711069?

The tribunal order states: The tenant’s application for the bond is allowed. The Bond Centre is to

How much money was awarded in case 4711069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711069?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4711069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10597117-Tribunal_Order.pdf.

20 Fowler Street, Northcote, Auckland 0627 Tenancy Tribunal Case 4711069 — Exemplary damages

Order

The tenant’s application for the bond is allowed. The Bond Centre is to pay the bond of $2,000.00 (3392888-004) to Jiayuan Cai immediately.
All claims other claims are dismissed.

Reasons

The tenant attended the hearing with her partner, Gaetan Duvaux.
The landlord attended with counsel, Angela Parlane.
The tenant claims the landlord unlawfully terminated the tenancy, owes her for overpaid rent, has not authorised return of the bond, and interfered with her reasonable peace, comfort, and privacy. 1 1 The tenant also wished to claim the landlord had directed her flatmates not to reimburse her for power and internet charges. The matter was only raised at the hearing and therefore too late to be included in this claim. She should raise this matter with her flatmates. Background
On 28 October 2022, the tenant and the landlord entered into a fixed-term tenancy agreement for the period 4 December 2022 to 4 December 2023 at a weekly rent of $800.00.
The tenant was one of a group of flatmates who had been living together at another rental property. Only the tenant was named as a tenant in the tenancy agreement. From the landlord’s perspective, a single tenant was named for convenience and simplicity. From the tenant’s point of view, she was the “head tenant”, so had primary responsibility for ensuring the rent was paid and that she and her flatmates met their obligations to the landlord.
The tenant and her flatmates and the landlord and his wife all got on well. The tenant ensured the rent was paid and the landlord looked after the property. Everyone was content with the arrangement.
In July of 2023, the tenant told the landlord that she and Mr Duvaux had purchased their own home and wished to move out. The landlord was happy with that so long as she had a new flatmate take her place, so the rent was paid. The tenant found a replacement flatmate within days, she and Mr Duvaux moved out. All appeared well.
However, it transpired the tenant and the landlord had vastly different understandings of the nature of the tenancy arrangement. The landlord understood that, while the tenant was the “head tenant”, the tenant and her flatmates all shared the rent obligation in a traditional Kiwi flatting way. The landlord thought that the new flatmate would simply pay the departing tenant’s share of the rent.
The tenant on the other hand, understood that she was a sublandlord. She (not her flatmates) had to pay the rent to the landlord. It was up to her how much rent her subtenants/flatmates should pay her. She saw herself as managing the tenancy, organising services, and providing much of the furniture and whiteware for the premises. She felt fully justified in charging her former flatmates weekly rent of $1,070.00, $270.00 more than the $800.00 per week she paid the landlord.
Significantly, for what happened next, the tenant did not disclose the profit she was making from the tenancy to the landlord.
In October of 2023, the landlord was surprised and outraged when he found out from the tenant’s former flatmates what the tenant had been doing.
On about 7 October 2023, the landlord unceremoniously cancelled the fixed- term tenancy, effective immediately.

Did the landlord unlawfully terminate the tenancy?

Under Residential Tenancies Act 1986 (RTA), s 60AA it is an unlawful act for a landlord to give notice terminating the tenancy knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 2
The landlord was probably unaware he was not entitled to terminate the tenancy in the circumstances. Ignorance of the law is usually no excuse, but in the case of s 60AA the landlord must know they are not entitled to give the notice. I am not satisfied on the balance of probabilities that the landlord knew he was not entitled to give the notice.
Even if I had found the landlord had committed this unlawful act, I would not have found it just to award exemplary damages against the landlord. The tenant breached the tenancy agreement by subletting the premises without the landlord’s written consent. 3 She had not disclosed she was profiting from the tenancy. The landlord was understandably indignant. The tenant no longer lived in the premises. If the tenant had not (unlawfully) sublet the premises, the termination would have only benefited her because she would have been relieved of all her obligations under the fixed-term tenancy agreement.

Does the landlord owe the tenant for overpaid rent?

The tenant paid the landlord $1,600.00 rent for the two weeks following the landlord’s termination of the tenancy.
I do not find it proven that the tenant suffered any loss. She was charging “her” subtenants weekly rent of $1,070.00 per week, on-paying $800.00 to the landlord, and keeping $270.00. It is more probable than not that the $1,600.00 the tenant paid to the landlord was her subtenants’.
Even if some or part of the $1,600.00 were not technically the subtenants’, I would not be inclined to order the landlord pay the tenant anything because she profited from the landlord’s asset without legal authority. 2 RTA, s 60AA and Schedule 1A. 3 The tenant could only sublet with the prior written consent of the landlord. Under RTA, s 44(2A)(b) and Schedule 1A unconsented subletting is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. Interference with the tenant’s reasonable peace, comfort, or privacy?
A landlord must not interfere with the tenant’s reasonable peace, comfort, or privacy in the premises. 4
The tenant says the landlord interfered with her reasonable peace by, among other things, often coming onto the property without notice.
The landlord lives next door to the premises. He agrees he did go to the property but says he did so only for legitimate reasons and with lawful authority, and not excessively.
This allegation was made after the parties fell into dispute. No contemporaneous evidence such as complaint made at the time was produced. Rather, the correspondence indicates the parties got on famously until the falling out over the tenant’s subletting the premises.
Neither the tenant nor Mr Devaux’s evidence was imbued with conviction that the landlord’s actions were genuinely troubling or annoying. The tenant was far more energised by the subletting issue than this claim.
It is probable the tenant has reinterpreted the landlord’s innocuous actions negatively after the event.
This claim is not proven on the balance of probabilities.

Should the Tribunal order release of the bond to the tenant?

The tenant has applied for refund of the bond. The landlord has not filed a counterclaim with Tenancy Services.
The bond is to be refunded to the tenant in full. 5 4 RTA, s 38(2). 5 RTA, s 22B(2).

Order

The tenant’s application for the bond is allowed. The Bond Centre is to pay the bond of $2,000.00 (3392888-004) to Jiayuan Cai immediately.
All claims other claims are dismissed.

Reasons

The tenant attended the hearing with her partner, Gaetan Duvaux.
The landlord attended with counsel, Angela Parlane.
The tenant claims the landlord unlawfully terminated the tenancy, owes her for overpaid rent, has not authorised return of the bond, and interfered with her reasonable peace, comfort, and privacy. 1 1 The tenant also wished to claim the landlord had directed her flatmates not to reimburse her for power and internet charges. The matter was only raised at the hearing and therefore too late to be included in this claim. She should raise this matter with her flatmates. Background
On 28 October 2022, the tenant and the landlord entered into a fixed-term tenancy agreement for the period 4 December 2022 to 4 December 2023 at a weekly rent of $800.00.
The tenant was one of a group of flatmates who had been living together at another rental property. Only the tenant was named as a tenant in the tenancy agreement. From the landlord’s perspective, a single tenant was named for convenience and simplicity. From the tenant’s point of view, she was the “head tenant”, so had primary responsibility for ensuring the rent was paid and that she and her flatmates met their obligations to the landlord.
The tenant and her flatmates and the landlord and his wife all got on well. The tenant ensured the rent was paid and the landlord looked after the property. Everyone was content with the arrangement.
In July of 2023, the tenant told the landlord that she and Mr Duvaux had purchased their own home and wished to move out. The landlord was happy with that so long as she had a new flatmate take her place, so the rent was paid. The tenant found a replacement flatmate within days, she and Mr Duvaux moved out. All appeared well.
However, it transpired the tenant and the landlord had vastly different understandings of the nature of the tenancy arrangement. The landlord understood that, while the tenant was the “head tenant”, the tenant and her flatmates all shared the rent obligation in a traditional Kiwi flatting way. The landlord thought that the new flatmate would simply pay the departing tenant’s share of the rent.
The tenant on the other hand, understood that she was a sublandlord. She (not her flatmates) had to pay the rent to the landlord. It was up to her how much rent her subtenants/flatmates should pay her. She saw herself as managing the tenancy, organising services, and providing much of the furniture and whiteware for the premises. She felt fully justified in charging her former flatmates weekly rent of $1,070.00, $270.00 more than the $800.00 per week she paid the landlord.
Significantly, for what happened next, the tenant did not disclose the profit she was making from the tenancy to the landlord.
In October of 2023, the landlord was surprised and outraged when he found out from the tenant’s former flatmates what the tenant had been doing.
On about 7 October 2023, the landlord unceremoniously cancelled the fixed- term tenancy, effective immediately.

Did the landlord unlawfully terminate the tenancy?

Under Residential Tenancies Act 1986 (RTA), s 60AA it is an unlawful act for a landlord to give notice terminating the tenancy knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 2
The landlord was probably unaware he was not entitled to terminate the tenancy in the circumstances. Ignorance of the law is usually no excuse, but in the case of s 60AA the landlord must know they are not entitled to give the notice. I am not satisfied on the balance of probabilities that the landlord knew he was not entitled to give the notice.
Even if I had found the landlord had committed this unlawful act, I would not have found it just to award exemplary damages against the landlord. The tenant breached the tenancy agreement by subletting the premises without the landlord’s written consent. 3 She had not disclosed she was profiting from the tenancy. The landlord was understandably indignant. The tenant no longer lived in the premises. If the tenant had not (unlawfully) sublet the premises, the termination would have only benefited her because she would have been relieved of all her obligations under the fixed-term tenancy agreement.

Does the landlord owe the tenant for overpaid rent?

The tenant paid the landlord $1,600.00 rent for the two weeks following the landlord’s termination of the tenancy.
I do not find it proven that the tenant suffered any loss. She was charging “her” subtenants weekly rent of $1,070.00 per week, on-paying $800.00 to the landlord, and keeping $270.00. It is more probable than not that the $1,600.00 the tenant paid to the landlord was her subtenants’.
Even if some or part of the $1,600.00 were not technically the subtenants’, I would not be inclined to order the landlord pay the tenant anything because she profited from the landlord’s asset without legal authority. 2 RTA, s 60AA and Schedule 1A. 3 The tenant could only sublet with the prior written consent of the landlord. Under RTA, s 44(2A)(b) and Schedule 1A unconsented subletting is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. Interference with the tenant’s reasonable peace, comfort, or privacy?
A landlord must not interfere with the tenant’s reasonable peace, comfort, or privacy in the premises. 4
The tenant says the landlord interfered with her reasonable peace by, among other things, often coming onto the property without notice.
The landlord lives next door to the premises. He agrees he did go to the property but says he did so only for legitimate reasons and with lawful authority, and not excessively.
This allegation was made after the parties fell into dispute. No contemporaneous evidence such as complaint made at the time was produced. Rather, the correspondence indicates the parties got on famously until the falling out over the tenant’s subletting the premises.
Neither the tenant nor Mr Devaux’s evidence was imbued with conviction that the landlord’s actions were genuinely troubling or annoying. The tenant was far more energised by the subletting issue than this claim.
It is probable the tenant has reinterpreted the landlord’s innocuous actions negatively after the event.
This claim is not proven on the balance of probabilities.

Should the Tribunal order release of the bond to the tenant?

The tenant has applied for refund of the bond. The landlord has not filed a counterclaim with Tenancy Services.
The bond is to be refunded to the tenant in full. 5 4 RTA, s 38(2). 5 RTA, s 22B(2).

Tenancy Tribunal case 4711069 — Exemplary damages at 20 Fowler Street, Northcote, Auckland 0627

At a glance

Tenancy Tribunal case 4711069 — Exemplary damages at 20 Fowler Street, Northcote, Auckland 0627

At a glance

Claims & awards

Order

Reasons

Did the landlord unlawfully terminate the tenancy?

Does the landlord owe the tenant for overpaid rent?

Should the Tribunal order release of the bond to the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord unlawfully terminate the tenancy?

Does the landlord owe the tenant for overpaid rent?

Should the Tribunal order release of the bond to the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions