What was the outcome of Tenancy Tribunal case 4777384?

The tribunal order states: Kevin Tran must pay Dylan Radford $1,715.44 immediately as set out in the

How much money was awarded in case 4777384?

Compensation: breach of right to qui…: $630.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $315.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4777384?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4777384?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10610381-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4777384?

The tribunal order states: Kevin Tran must pay Dylan Radford $1,715.44 immediately as set out in the

How much money was awarded in case 4777384?

Compensation: breach of right to qui…: $630.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $315.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4777384?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4777384?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10610381-Tenancy_Tribunal_Order.pdf.

11 Bronzewater Drive, Silverdale, Silverdale 0932 Tenancy Tribunal Case 4777384 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4777384 — net $1,715.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of right to quiet enjoyment	$630.00	breach of right to quiet enjoyment
Exemplary damages: fail to lodge bond	$750.00	fail to lodge bond
Exemplary damages: heat pump	$315.00	heat pump
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,715.44
Total payable by Landlord to Tenant	$1,715.44

Claims and awards in Tenancy Tribunal application 4777384 — net $1,715.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: breach of right to quiet enjoyment	$630.00	breach of right to quiet enjoyment
Exemplary damages: fail to lodge bond	$750.00	fail to lodge bond
Exemplary damages: heat pump	$315.00	heat pump
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,715.44
Total payable by Landlord to Tenant	$1,715.44

Order

Kevin Tran must pay Dylan Radford $1,715.44 immediately as set out in the table below:

Reasons

Both parties attended the hearing. Jurisdiction
The landlord’s position is that he and the tenant are are not parties to a residential tenancy agreement to which the Residential Tenancies Act 1986 (“RTA”) applies. Were that the case, the Tribunal would not have jurisdiction to determine the tenant’s claims.
The landlord’s submission is that he continued to live and work in the premises, so the parties’ agreement is excluded from the provisions of the RTA by s.5(1)(n), which provides that the RTA 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”
In terms of s.10 RTA, the onus is on the landlord to prove the facts that he says would prevent application of the RTA.
The landlord and tenant entered into an agreement on a residential tenancy agreement form downloaded from the tenancy services website. It clearly provides for the RTA to apply. The agreement gives 11 Bronze Water Drive as the tenancy address although other provisions of the agreement make it clear that the tenant was renting a room, with common areas shared with other occupants, with whom the landlord had separate, similar agreements.
The landlord says that he was one of the occupants with whom the premises were shared. He says that he was living at the property throughout the tenancy although often spent time working away on contract and sometimes stayed at his parents or partner’s home or with his daughter. He says that throughout, a room at the premises served as the office for his contracting business.
The tenant’s evidence is that he was never aware of the landlord sleeping at the premises, was never made aware that the landlord intended to continue occupying the premises and, like the other occupants (who did not give evidence) was surprised and concerned when the landlord appeared at the premises without notice and when he gave notice of his intention to move in. Analysis
The starting point is the agreement itself, by which the parties had agreed in writing that the RTA would apply to their arrangement.
There is a significant conflict in the evidence given by the parties. Unless there is evidence clearly corroborating the landlord’s position, I am required to find his position unproved, as the onus rests with him to bring evidence to prove that the RTA should not apply.
The following exchanges are useful in illustrating the parties’ different perceptions: Tenant – “Please next time give us 24 hours notice before you turn up as per law otherwise we will have to take further action” Landlord “Ok sure Dylan. Note that I still have the room upstair but I’m lazy to go back on the weekends only. We will talk when I come back from my trip” Tenant “Are you a tenant or a landlord”
After a period staying with his partner the landlord txt the tenants “Please leave the parking in front of the house vacant as I need to move my stuff into my room. Thank you very much. Have a great day everyone.”
The tenant and other residents queried the landlords intent txting the landlord, “Hey Kevin if I was you I would hold off on moving your stuff in as you are a landlord and if you want to move back in you have to give 90 days notice to change all our contracts.”
The landlord responded, “No mate I live there but not come back home often lately. ...... the landlord live in the house with flat mates.”
Also, the landlord’s position rests on the assumption that the issue for applying of s.5(1)(n) is whether or not the premises remained his principal place of residence during the tenancy. With respect, that is not the question, which is, whether the principal use of the premises during the tenancy was as his residence. The evidence shows that three of the rooms in the house were rented out to paying tenants, the landlord was often staying away on contract, or with his partner or family and his main use of the premises was as the base for his business.
That being so, even if the premises were his principal residence, the principal use of the premises themselves, was for commercial purposes.
For those reasons I find that the parties’ agreement is not excluded from the RTA by s.5(1)(n).
Even had it been, s.8 provides that, “...parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree.”
The parties signed a written agreement that the RTA would apply so I find that the Tribunal has jurisdiction to determine the claims. Tenant’s claims
The tenant claims compensation and exemplary damages for what he says are breaches of the landlord’s obligations by: a. breaching his right to quiet enjoyment of the premises b. unlawful entry c. failing to properly deal with his bond d. failing to provide a heat pump e. causing pain and suffering f.unlawfully terminating of the tenancy Quiet enjoyment
Sections 38(1) and (2) provide that: “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The evidence strongly suggests that the landlord continued to treat the premises as his place, in which he was entitled to require the other occupants to live according to his expectations.
This included making demands about adherence to a cleaning roster, criticisms of the tidiness of the premises putting organic waste in rubbish bins or not using the recycling bins as they should be. Notes and photos were sent to the tenant and other occupants with those criticisms. A camera was installed by the landlord that impacted their privacy, but I do not find it proved that the camera was installed to monitor the residents’ behaviour.
A series of texts from the landlord read, “.....where is the roster checklist on the fridge please? ...........Please follow the roster and keep the cleaning responsibility for the house. ............As I mentioned to all of you that we need to keep this house at high standard of living (not like other cheap house) please. Especially the common areas. ........I'm aware that Dylan is not at home often and not cooking a lot. But if you use common areas often then clean up after every you use. ..........Please talk to me directly if you see unusual in the house.”
I make no comment on whether the landlord’s expectations were reasonable or not. What the evidence does show though, is that the tenant and other occupants were living with a degree of oversight and “management” by the landlord, that is not consistent with their rights under s.38.
From the tenant’s perspective, the situation was made worse by those communications coming after visits to the premises by the landlord that the tenant did not think the landlord was entitled to make without proper notice.
The tenant is entitled to compensation for that imposition on his right quiet enjoyment of the premises that he was paying rent for. I fix that compensation at 2 weeks’ rent Unlawful Entry
A landlord is entitled to enter premises in the circumstances set out in s.41.
Doing so when not lawfully entitled, is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded.
Where a party has committed an unlawful act intentionally the Tribunal must consider whether it would be just to award exemplary damages, having regard to the considerations in s.109(3), which are: “(a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest.”
In these circumstances, I am satisfied that the landlord was under the genuine belief that all parties had agreed and understood that he retained a right to use part of the premises including common areas, which would be inconsistent with his having to give notice of an intention to enter the premises.
Even if that as not what everyone had understood or agreed, I do not consider it would be just to award exemplary damages for what the landlord clearly believed had been agreed between the parties Bond
The tenant paid a bond of $945.00 when the tenancy began on 21 October 2023. Even though the landlord had a separate agreement with the tenant, under which a separate bond was paid, the landlord did not separately lodge the tenant’s bond with the Bond Centre. Instead, a joint lodgement of the sum of $2025.00 in the joint names of the tenant and three other residents, was made on 12 January 2024.
The bond has now been released.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not lodge the tenant’s bond within the required time. Nor was he entitled to change the nature of the tenant’s bond from being a bond of $945.00 to be held in the tenant’s name, to a joint and undefined share of a larger amount. That gave rise to actual and potential complications for the tenant in recovering his bond.
I find the landlord has committed an unlawful act in his failure to properly deal with the tenants’ bond.
I take into account that the landlord did in fact lodge the bond, albeit late and improperly and that it has been returned.
There is a public interest in landlords being conscientious about how they administer a tenant’s bond money which I also take into account in finding that an award of exemplary damages of 50% of the prescribed maximum would be just. Heat Pump
The premises were fitted with a heat pump (though used for cooling over the course of this tenancy). The landlord took the view that the tenants were deliberately over using the heat pump – leaving it running with doors and windows open etc, to cause him financial harm because the electricity account was in his name.
The tenant’s evidence is that he came home to find that the circuit breaker for the heat pump had been turned off, the main switch on the heat pump itself had been turned off and taped closed and a note on it saying please do not use.
Evidence provided by the landlord does show a spike in electricity use during the time he says the heat pump was being used improperly. The landlord says he complained to the tenants about the electricity costs
Nevertheless, if the heat pump was a chattel included in the tenancy, the landlord had an obligation to keep it available for the tenant’s use. If the landlord was of the view that the tenant or other tenants were breaching their obligations by being unreasonable about their operation of it, the provisions of the RTA provide a means for seeking compensation, rather than the landlord taking the summary action he did.
The tenant’s evidence is clear that despite asking for the statements showing the extent of the electricity costs complained of by the landlord, none were provided to support the landlord’s concerns.
I find that compensation is due to the tenant for the landlord’s removal of the tenant’s use of the heat pump, which I fix at one week’s rent. Termination
A dispute developed when the landlord txt the tenants about moving back to the premises. The relevant txt are recorded in paragraphs 12 to 14 of this Order.
The landlord did not move back in and on 6 January 2024 issued a notice of termination, “We have decided to move back home so we would like to give you 63 days notice sincerely”.
The tenant disputes the validity of that notice on the basis that the landlord’s family have not had moved back in.
As I view the evidence, the landlord genuinely believed that the agreements between he and the other residents were entered into on the basis that he remained entitled to live at the premises.
Having become aware that the other occupants did not share that view and did not want him living there, the landlord did not press the issue at that time but instead issued a notice of termination.
Section 51(1)(a) provides that, “A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if—(a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.”
I find that the landlord did genuinely want and need to be able to occupy the premises as his principal place of residence. Though he thought he was already entitled to do so, when he was made aware that the other occupants did not agree, he was entitled to give notice of termination under section 51(1)(a) to “recover” possession of the premises so he could live there. I find no breach of the landlord’s obligations in that regard. Pain and suffering
Awards of compensation recognise the impact of a landlord’s breach on the tenants use and enjoyment of the premises. Section 109(3) requires that the Tribunal consider the effect of a landlord’s unlawful act on the tenant as one of the factors in assessing awards of exemplary damages. Those matters have been taken into account where supported by the evidence.
Because Dylan Radford has had claims upheld claim I have reimbursed the filing fee.

Tenancy Tribunal case 4777384 — Exemplary damages at 11 Bronzewater Drive, Silverdale, Silverdale 0932

At a glance

Tenancy Tribunal case 4777384 — Exemplary damages at 11 Bronzewater Drive, Silverdale, Silverdale 0932

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions