What was the outcome of Tenancy Tribunal case 4716653?

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

How much money was awarded in case 4716653?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4716653?

The primary dispute was Harassment. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4716653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9846863-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4716653?

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

How much money was awarded in case 4716653?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4716653?

The primary dispute was Harassment. Related themes: Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4716653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9846863-Tenancy_Tribunal_Order.pdf.

Room 3, 34 Summerhill Drive, Fitzherbert, Palmerston Tenancy Tribunal Case 4716653 — Harassment

Order

The landlord’s application is dismissed.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing.
The landlord’s application is for compensation to repair a hole in a wall in the premises which he believes the tenant caused intentionally.
The tenant’s application is for compensation and exemplary damages. The tenant has claimed that the landlord: a. Failed to keep records. See section 30 Residential Tenancies Act 1986 (“RTA”). b. Failed to have a written tenancy agreement. See section 13 RTA. c. Unlawfully entered the premises. See section 48 RTA. d. Breached the tenant’s right to quiet enjoyment. See section 38 RTA.
In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, each party 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: “... [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.” The landlord’s claim
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
The landlord claimed that damage to a wall in the premises was caused by the tenant intentionally.
The tenant denied that the damage was caused by him and claimed that it was present at the start of the tenancy.
The landlord must prove that the damage occurred during the tenancy. The landlord had no photographic evidence that the wall was not damaged at the start of the tenancy. He relied on the tenancy agreement which indicated issues with the carpet and curtains but did not mention damage to the wall. He also claimed that the carpet installer “heard” the tenant deliberately damage the wall. This person did not give evidence.
I am not satisfied that the landlord has proven on the balance of probabilities that the tenant caused the damage.
The landlord’s claim is dismissed.
The landlord stated at the hearing that he did not take photographs of the premises at the start of a tenancy. Without such evidence clearly showing the state of the property at the start of a tenancy, it will be very difficult for a landlord to prove that damage was caused during a tenancy. Tenant’s claim for failing to keep records and have a written tenancy agreement
The tenant’s application was that the landlord failed to keep records. At the hearing, he acknowledged that the claim was for the landlord failing to provide a written tenancy agreement. If I am wrong in my understanding of the tenant’s claim and it was for a breach of section 30 RTA, the tenant’s claim is dismissed in the absence of any evidence supporting the claim.
The parties agreed that a standard Residential Tenancy Agreement was prepared by the landlord. The tenant did not want to sign the agreement until he had considered its terms. He was not satisfied that the agreement was appropriate as he believed that the property was a boarding house.
The landlord advised that: a. The property comprised five bedrooms that were let out to individuals. b. Facilities were shared. c. Individual agreements were signed with each tenant. d. There has never been and there is no intention to accommodate more than five people. e. There was a small prayer room and another small room used for storage.
The tenant confirmed that during his occupation there were never more than five tenants.
On the basis of the landlord’s evidence as set out above, the premises are not a boarding house as it does not meet the definition in section 2 RTA as explained by van Bohemen J in Karmarkar v Pandem and Others [2018] NZHC at 693.
Having provided a tenancy agreement for signing, it was the tenant who chose not to sign it. The landlord is not responsible for this failure. There is no evidence that the landlord intended not to have a signed tenancy agreement.
The tenant’s claim is dismissed. Tenant’s claim for unlawfully entering the premises
Keiji Lacasse claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant claimed that the landlord came to his door, knocked on it and had another tenant enter into the tenant’s room to see the damage to the wall. The tenant provided evidence in the form of a recording from the person who entered the room who confirmed that he entered the room to look at the damage. This appears to have happened with the consent of the tenant. The tenant also believes that the landlord’s arm may have entered the room during this discussion.
The landlord denied knocking on the tenant’s door. He explained that he had come to the property at the request of the other tenant and that the tenant opened his door without invitation. The tenant’s recording confirmed that this witness invited the landlord to the property, but it is silent as to whether the landlord knocked on the tenant’s door or whether the tenant acme to the door to see what was going on.
The tenant also claimed that he had “set a trap” to determine if the landlord was entering his room when the tenant was absent. While the tenant explained how his trap worked and that it indicated the landlord had entered the tenant’s room. He further explained that on one occasion he was certain that the window latches were in different positions from when he left. The tenant did not provide any corroborating evidence to support these claims.
The landlord denied entering the tenant’s room without the tenant’s consent.
The Tribunal is not satisfied on the balance of probabilities on the evidence before it that the landlord has breached section 48 RTA and unlawfully entered the tenant’s room.
The tenant’s claim is dismissed. Tenant’s claim for breach of quiet enjoyment
Keiji Lacasse claims the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
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. See section 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 parties agreed that their relationship deteriorated during the tenancy. The tenant specifically complained of: a. Feeling threatened by the landlord when he indicated that the tenancy may end because the landlord may rent out the property as a whole rather than by individual rooms. b. Becoming “shocked and scared” by an altercation with the landlord. c. Being yelled at by the landlord over fixing a doorknob. d. Hearing stories from other tenants about previous conflict in the property. e. The landlord’s repeated allegations regarding damage to the wall in the premises. f. Feeling demeaned by the landlord’s treatment of him: “I had a feeling neither any talking nor mediation would solve the issue due to his reckless and persistently derogatory behavior and I felt terrified of his presence due to his previous behavior and his persistent accusations, negligent communication and overwhelming presence.”
As a result of this, the tenant decided that he could not continue to live at the premises and decided to leave the property. The landlord accepted very short notice from the tenant, allowing him to do so.
The tenant produced a recording of part of the altercation between the landlord and the tenant. Its content and tone repeated that of the landlord in the hearing. It did not appear to be indicate a heated argument and the language remained formal and restrained.
While I accept the tenant’s evidence that this caused significant distress to the tenant who was feeling vulnerable, I do not accept that on an objective assessment it reveals that the landlord set out to harass the tenant. The landlord appeared to be making genuine enquiries as to whether the tenant wished to continue with the tenancy or whether he wished to move away; and repeating his serious concerns about what he perceived to be intentional damage to his property. There is no evidence of the landlord yelling or abusing the tenant. He restates his sense of grievance over the damage to the wall and acknowledges that in other respects, the tenant has been a good tenant.
There is no evidence before the Tribunal that on the balance of probabilities shows that the landlord’s actions amounted to harassment as defined above. Nor can I find that the landlord’s actions amounted to a breach of the tenant’s right to quiet enjoyment so that compensation should be awarded. The landlord is allowed to express his concerns clearly and firmly. I cannot find from the evidence presented that he did any more than this.
The landlord has not committed an unlawful act and the tenant’s claims for exemplary damages and for compensation are dismissed.

Tenancy Tribunal case 4716653 — Harassment at Room 3, 34 Summerhill Drive, Fitzherbert, Palmerston

At a glance

Tenancy Tribunal case 4716653 — Harassment at Room 3, 34 Summerhill Drive, Fitzherbert, Palmerston

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions