What was the outcome of Tenancy Tribunal case 4734216?

The tribunal order states: Xiaolei Li must pay Florian-Emmanuel Christophe Pelabon $885.44

How much money was awarded in case 4734216?

Compensation: breach of quiet enjoym…: $265.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4734216?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4734216?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9763714-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4734216?

The tribunal order states: Xiaolei Li must pay Florian-Emmanuel Christophe Pelabon $885.44

How much money was awarded in case 4734216?

Compensation: breach of quiet enjoym…: $265.00 awarded to tenant; Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4734216?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4734216?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9763714-Tenancy_Tribunal_Order.pdf.

14 Birkhall Grove, Strathmore Park, Wellington 6022 Tenancy Tribunal Case 4734216 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4734216 — net $885.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful entry x 3	$600.00	unlawful entry x 3
Compensation: breach of quiet enjoyment	$265.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$885.44
Total payable by Landlord to Tenant	$885.44

Order

Xiaolei Li must pay Florian-Emmanuel Christophe Pelabon $885.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The tenant rents a room in a house owned by the landlord. There are two other tenants. One of those is the landlord’s mother. The landlord said he has tenancy agreements with all three tenants, even his mother. The tenant filed his application because he is concerned that the landlord comes into the house without giving notice. The landlord said he does not have to give notice when he comes into the house as a son. The questions I have to decide are: • Does the Tribunal have jurisdiction? • Did the landlord enter the house without giving proper notice? • Was there a breach of quiet enjoyment?

Does the Tribunal have jurisdiction?

Section 5 of the Residential Tenancies Act 1986 (RTA) sets out a variety of circumstances where a tenancy is excluded from the RTA. Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
This would seem to exclude the tenancy from the RTA. However, section 8 RTA provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can contract back into some or all of the provisions of the Act.
In Featherston v Barfoot and Thompson Limited [2015] NZDC 12810, the parties to a sale and purchase agreement signed a standard form residential tenancy agreement which included a statement that the RTA applied and that the bond would be lodged with the Bond Centre. Although the tenancy was theoretically covered by the exclusion in s 5(1)(o) RTA, the District Court concluded that the parties had contracted back into the Act. The Court rejected the argument that s 8 RTA required a provision written into the agreement specifically referring to the section.
The landlord and tenant in this case signed a tenancy agreement using the standard from provided by Tenancy Services. I find they contracted back into the RTA.

Did the landlord enter the house without giving proper notice?

The tenant 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) RTA.
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 RTA.
It is agreed evidence the landlord went into the house three times while his mother was away in China for an extended holiday. The first time was in September. The landlord let himself into the house, knocked on the tenant’s bedroom door, and asked him to move his car. Another time the landlord went to the house with his children, let himself in and watered his mother’s plants. The third time the landlord went to the house with at least three others, let himself in and removed the plants. The landlord did not give notice he was going inside for any of these visits.
The landlord said he entered the house on those occasions as a son, and not as a landlord, so there was no requirement to give notice. He also submitted that the third tenant who lives in the house has no problem with him going inside the house.
I have considered section 48(1) - (3) RTA. Landlords are allowed to enter the tenancy premises in these different circumstances: • in any case of emergency • for the purpose of inspecting the premises • for the purpose of testing for the presence of contaminants • for the purpose of determining whether the tenant has completed repairs • for the purpose of complying, or preparing to comply, with any requirements in respect of smoke alarms • for the purpose of complying, or preparing to comply, with the healthy homes standards • for the purpose of carrying out decontamination work • for the purpose of carrying out necessary repairs to or necessary maintenance • for the purpose of providing services • pursuant to an order of the Tribunal • in limited circumstances where the landlord has reasonable cause to believe that the tenant has abandoned the premises • With the prior consent of the tenant and subject to reasonable conditions to show the premises - i. to prospective purchasers ii. to a registered valuer iii. to a real estate agent iv. to an expert engaged in appraising or evaluating the premises v. to a person who is authorised to inspect the premises under any enactment.
Section 48 does not say that landlords can enter the tenancy premises without notice because of problems with parking. Section 48 does not allow landlords to enter without giving notice to water the plants. I find there was no proper reason for the landlord to come inside the house.
Given there was no proper reason as set out in section 48 RTA, the landlord could only have entered the house with the consent of the tenants. The fact the landlord’s mother lives in the house is not relevant here because the landlord contracted back into the RTA. I find the landlord should have got consent from all three tenants because he has individual tenancy agreements with each tenant.
The landlord’s submission that the third tenant living in the house did not mind is not relevant for the reasons given. I further note the landlord did not provide me with any evidence that his mother gave consent to these three entries.
Going forward, I find the landlord should give notice to all three tenants if he has a proper reason to enter, or he can enter with the consent of all three tenants. The landlord should keep good records of this.
The tenant also said the landlord is often at the house visiting his mother and he never gives notice. The landlord denied this, saying he only has only entered the house without consent on these three occasions. This is the tenant’s claim to prove. The tenant had no supporting evidence there were other breaches, so this part of the clam is dismissed.
I find the landlord breached the RTA three times and the landlord 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) RTA.
The landlord contracted back into the RTA. He has other tenancies. He knows he needs to give notice to enter the house for inspections. I find the landlord acted intentionally when he came into the house without giving proper notice. The unlawful entry caused frustration for the tenant and disturbed his quiet enjoyment. It is in tenants’ interests that landlords comply with the RTA and there is public interest that exemplary damages be ordered where landlords breach the RTA. I allow exemplary damages in the amount of $600. This is in the middle of the scale because there were three breaches, but I am not aware of any similar orders against the landlord.

Was there a breach of quiet enjoyment?

The tenant has claimed exemplary damages for the breach of quiet enjoyment.
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(2), (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 evidence for the breach of quiet enjoyment was the same. I do not find the three proved entries constituted harassment, and I have already allowed exemplary damages because of the section 48 RTA breaches. However, I find a small amount of compensation is fair for the breach of peace, comfort and privacy because the landlord entered once while the tenant was in bed, and once when he was not properly dressed. Other orders
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee.
The landlord’s application for suppression is not allowed because the landlord is not the most successful party.

Claims and awards in Tenancy Tribunal application 4734216 — net $885.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful entry x 3	$600.00	unlawful entry x 3
Compensation: breach of quiet enjoyment	$265.00	breach of quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$885.44
Total payable by Landlord to Tenant	$885.44

Order

Xiaolei Li must pay Florian-Emmanuel Christophe Pelabon $885.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The tenant rents a room in a house owned by the landlord. There are two other tenants. One of those is the landlord’s mother. The landlord said he has tenancy agreements with all three tenants, even his mother. The tenant filed his application because he is concerned that the landlord comes into the house without giving notice. The landlord said he does not have to give notice when he comes into the house as a son. The questions I have to decide are: • Does the Tribunal have jurisdiction? • Did the landlord enter the house without giving proper notice? • Was there a breach of quiet enjoyment?

Does the Tribunal have jurisdiction?

Section 5 of the Residential Tenancies Act 1986 (RTA) sets out a variety of circumstances where a tenancy is excluded from the RTA. Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
This would seem to exclude the tenancy from the RTA. However, section 8 RTA provides that, where the Act is excluded by sections 5 to 7, if the premises are used for residential purposes, the parties can contract back into some or all of the provisions of the Act.
In Featherston v Barfoot and Thompson Limited [2015] NZDC 12810, the parties to a sale and purchase agreement signed a standard form residential tenancy agreement which included a statement that the RTA applied and that the bond would be lodged with the Bond Centre. Although the tenancy was theoretically covered by the exclusion in s 5(1)(o) RTA, the District Court concluded that the parties had contracted back into the Act. The Court rejected the argument that s 8 RTA required a provision written into the agreement specifically referring to the section.
The landlord and tenant in this case signed a tenancy agreement using the standard from provided by Tenancy Services. I find they contracted back into the RTA.

Did the landlord enter the house without giving proper notice?

The tenant 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) RTA.
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 RTA.
It is agreed evidence the landlord went into the house three times while his mother was away in China for an extended holiday. The first time was in September. The landlord let himself into the house, knocked on the tenant’s bedroom door, and asked him to move his car. Another time the landlord went to the house with his children, let himself in and watered his mother’s plants. The third time the landlord went to the house with at least three others, let himself in and removed the plants. The landlord did not give notice he was going inside for any of these visits.
The landlord said he entered the house on those occasions as a son, and not as a landlord, so there was no requirement to give notice. He also submitted that the third tenant who lives in the house has no problem with him going inside the house.
I have considered section 48(1) - (3) RTA. Landlords are allowed to enter the tenancy premises in these different circumstances: • in any case of emergency • for the purpose of inspecting the premises • for the purpose of testing for the presence of contaminants • for the purpose of determining whether the tenant has completed repairs • for the purpose of complying, or preparing to comply, with any requirements in respect of smoke alarms • for the purpose of complying, or preparing to comply, with the healthy homes standards • for the purpose of carrying out decontamination work • for the purpose of carrying out necessary repairs to or necessary maintenance • for the purpose of providing services • pursuant to an order of the Tribunal • in limited circumstances where the landlord has reasonable cause to believe that the tenant has abandoned the premises • With the prior consent of the tenant and subject to reasonable conditions to show the premises - i. to prospective purchasers ii. to a registered valuer iii. to a real estate agent iv. to an expert engaged in appraising or evaluating the premises v. to a person who is authorised to inspect the premises under any enactment.
Section 48 does not say that landlords can enter the tenancy premises without notice because of problems with parking. Section 48 does not allow landlords to enter without giving notice to water the plants. I find there was no proper reason for the landlord to come inside the house.
Given there was no proper reason as set out in section 48 RTA, the landlord could only have entered the house with the consent of the tenants. The fact the landlord’s mother lives in the house is not relevant here because the landlord contracted back into the RTA. I find the landlord should have got consent from all three tenants because he has individual tenancy agreements with each tenant.
The landlord’s submission that the third tenant living in the house did not mind is not relevant for the reasons given. I further note the landlord did not provide me with any evidence that his mother gave consent to these three entries.
Going forward, I find the landlord should give notice to all three tenants if he has a proper reason to enter, or he can enter with the consent of all three tenants. The landlord should keep good records of this.
The tenant also said the landlord is often at the house visiting his mother and he never gives notice. The landlord denied this, saying he only has only entered the house without consent on these three occasions. This is the tenant’s claim to prove. The tenant had no supporting evidence there were other breaches, so this part of the clam is dismissed.
I find the landlord breached the RTA three times and the landlord 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) RTA.
The landlord contracted back into the RTA. He has other tenancies. He knows he needs to give notice to enter the house for inspections. I find the landlord acted intentionally when he came into the house without giving proper notice. The unlawful entry caused frustration for the tenant and disturbed his quiet enjoyment. It is in tenants’ interests that landlords comply with the RTA and there is public interest that exemplary damages be ordered where landlords breach the RTA. I allow exemplary damages in the amount of $600. This is in the middle of the scale because there were three breaches, but I am not aware of any similar orders against the landlord.

Was there a breach of quiet enjoyment?

The tenant has claimed exemplary damages for the breach of quiet enjoyment.
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(2), (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 evidence for the breach of quiet enjoyment was the same. I do not find the three proved entries constituted harassment, and I have already allowed exemplary damages because of the section 48 RTA breaches. However, I find a small amount of compensation is fair for the breach of peace, comfort and privacy because the landlord entered once while the tenant was in bed, and once when he was not properly dressed. Other orders
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee.
The landlord’s application for suppression is not allowed because the landlord is not the most successful party.

Tenancy Tribunal case 4734216 — Exemplary damages at 14 Birkhall Grove, Strathmore Park, Wellington 6022

At a glance

Tenancy Tribunal case 4734216 — Exemplary damages at 14 Birkhall Grove, Strathmore Park, Wellington 6022

At a glance

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Did the landlord enter the house without giving proper notice?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Did the landlord enter the house without giving proper notice?

Was there a breach of quiet enjoyment?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions