What was the outcome of Tenancy Tribunal case 4825817?

The tribunal order states: Wendy Beshae Rowe and Gaylia Pullen must pay Auckland Property

How much money was awarded in case 4825817?

Property Damage: $300.00 awarded to landlord; Water Rates: $638.35 awarded to landlord

What type of tenancy dispute was case 4825817?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4825817?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10297861-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4825817?

The tribunal order states: Wendy Beshae Rowe and Gaylia Pullen must pay Auckland Property

How much money was awarded in case 4825817?

Property Damage: $300.00 awarded to landlord; Water Rates: $638.35 awarded to landlord

What type of tenancy dispute was case 4825817?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4825817?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10297861-Tribunal_Order.pdf.

12 Mount Smart Road, Royal Oak, Auckland 1061 Tenancy Tribunal Case 4825817 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4825817. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: failure to allow entry	$300.00		failure to allow entry
Outstanding water rates Filing fee	$638.35		Outstanding water rates Filing fee

Claims and awards in Tenancy Tribunal application 4825817. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damages: failure to allow entry	$300.00		failure to allow entry
Outstanding water rates Filing fee	$638.35		Outstanding water rates Filing fee

Order

Wendy Beshae Rowe and Gaylia Pullen must pay Auckland Property Management Solutions Limited as Agent for De La Macorra Noriega, Jose Carlos $938.35 no later than 24 May 2024, as follows:
If the payment of $638.35 for water rates is not made within 2 working days of the due date in Order 1, the tenancy will immediately terminate and possession will return to the landlord.
All other applications by either party are dismissed.
No suppression Orders apply around publication of this decision.

Reasons

Both parties attended the hearing. Background
A consent Order was made dated 19 June 2023 (“the June Order”) in respect of this tenancy. At that time the parties were the tenants and Barfoot & Thompson Limited, who were then the agents for the owner.
The Order required that the tenants make weekly payments of $760.00 being $710.00 for weekly rent and $50.00 towards repayment of a debt of $2,850.44, agreed to be owing as at Saturday 24 June 2023.
Payments were ordered to be every Sunday starting 25 June 2023.
The Order contained a consequential clause that, if the tenants failed to pay rent and rent arrears within 2 working days of the due dates, the tenancy would immediately terminate.
Rent records provided by the landlord show that apart from one or two missed payments, since made up, the tenants have made the weekly payments of $760.00 required by the June Order. However, from before the June Order and since, payments have not been made on a regular day of the week, often being made on a Wednesday or Thursday rather than the prior Sunday. The tenants have therefore not been paying rent weekly in advance as required by the agreement or paying on Sunday as required by the June Order.
On 15 February 2024 the tenants were advised by Barfoot & Thompson Ltd that it would no longer be managing the tenancy and that the owner's new property manager would be in touch with new rent payment details.
The tenants were not provided with alternative rent payment details. They were phoned on 28 February 2024 by Ms Young, the current property manager, to let them know she had been appointed. The tenants requested confirmation from the owner, who confirmed Ms Young’s appointment in an e-mail of the same date.
In the meantime, rent payments were not made. They have since been caught up.
The landlord wanted to conduct an inspection of the premises and gave notice on 28 February 2024 of intention to conduct an inspection on 6 March 2024 between 8:30am-5:00pm. The tenants did not agree to the inspection.
A further notice of intended inspection was given on 18 March 2024 for an inspection on 22 March 2024. Again, the tenants did not allow access
The landlords’ e-mailed again on 15 April 2024, “Can we arrange a time next week for the house inspection. I am concerned that it is now overdue and we request access. Failing to do routine inspections can effect the owner’s insurance so please can we sort this out ASAP. Thanks.”
By then the tenants had filed their application with the Tribunal and responded “Unfortunately Christine, until we have addressed all matters pending with applications to the Tenancy Tribunal, we are not comfortable with you conducting an inspection.”
The parties reached impasse. The landlord insisted on entry in terms of the notice given, but the tenants would not allow access.
The impasse has been resolved for now, with a consent Order having been made on 2 May 2024 as follows: “The landlord will have access to the premises for the purposes of conducting a routine inspection on 6 May 2024 at 10:00am. As well as other matters, the property manager will: a. inspect the newly installed water meter for signs of leaking; and b. inspect the entry gates which the tenants say are unmanageable for them.”
Fourteen day breach notices have been given to the tenants by the landlord: a. (undated) for adding locks to the driveway gate and side front gate; and b. on 4 April 2024 for failing to pay outstanding water rates. The Applications
The tenants’ application was filed on 1 March 2024.
The tenants seek Orders: a. for exemplary damages for the landlord’s failure to advise them of the management change and for failing to provide a tenancy agreement; b. for compensation for breach of their right to quiet enjoyment of the premises; c. for a direction that the tenancy should not be managed by Ms Young
The landlord’s application was filed on 6 March 2024.
The landlord seeks Orders for: a. access to the premises for inspection (dealt with in the consent Order); b. exemplary damages for the tenants’ failure to allow entry for inspection; c. confirmation of the water rates owing; d. termination of the tenancy for: i. breach of the June Order ii. failure to remedy the lock breach iii. failure to remedy the water rates breach. The Tenants’ applications Management of Tenancy
The Tribunal has no jurisdiction to Order who an owner may appoint as property manager. The application for a direction that Ms Young not manage the tenancy is declined. Change in Management
Section 15 RTA provides that: “Where, during the term of any tenancy, the landlord’s or tenant’s interest passes to some other person, that other person shall, within 10 working days thereafter, cause the other party to the tenancy to be notified of— (a) the full name and contact address of that person; and (b) an address for service, being the address at which notices and other documents relating to the tenancy will be accepted by or on behalf of the person. (1A) For the purposes of subsection (1)(a), the following must be notified with the person’s contact address: (a) the person’s contact mobile telephone number (if any): (b) the person’s contact email address (if any). (2) A landlord or tenant who fails to comply with this section commits an unlawful act.”
The notice given by Barfoot & Thompson on 15 February 2024 that their management was ending, did not provide that required information. The information was subsequently given by the owner in his e-mail to the tenants on 28 February 2024, within 10 working days of the change.
That being so I do not find a breach of the landlord’s obligations.
I find that the landlord has not breached the obligation to provide a written tenancy agreement to the tenants. There is a written agreement dated 14 November 2022. That agreement is for a fixed term from 17 December 2022 to 17 December 2023.
Although that fixed term has passed, s.60A(1) provides that, “On the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy.”
Accordingly, there is a written agreement in place, being the parties’ original agreement, now operating as a periodic tenancy. Quiet enjoyment
The evidence about the actions on the landlord’s part, said to have constituted a breach of the tenants’ right to quiet enjoyment of the premises, seems to me to really show the property manager wanting, increasingly assertively, to meet her responsibility to the owner to carry out an inspection.
Although they say their understanding of the situation resulted from advice given by Tenancy Services, the tenants’ position that the landlord may only enter the premises for an inspection with their consent, does not reflect what the RTA says.
The tenants are correct in noting s.48 which says that “The landlord shall not enter the premises during the currency of the tenancy agreement, except— (a) with the consent of the tenant freely given at, or immediately before, the time of entry...”.
However, that provision continues in subsection (b), “...or (my emphasis) in any of the circumstances described in subsections (2) to (3)”
One of those circumstances is set out in (2)(b) and is, “....for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks”
That position is spelled out on the Tenancy Services website which notes: “Landlords can enter the property for inspections. [The] tenant doesn’t have to be present during inspections, but [the landlord] should ask if they want to be. Landlord’s are encouraged to “Be courteous during property inspections – give the right notice, choose a suitable time and day, and encourage feedback.
Accordingly, while the tenants are entitled to expect that the landlord will exercise the right to enter the premises to inspect, after giving proper notice, with due consideration for the tenants’ situation and circumstances, the tenants are not entitled to choose whether or not they will agree to a lawful inspection being carried out.
The evidence does not persuade me that the property manager’s actions in pressing for her right to conduct an inspection of the premises, constituted a breach of the tenants’ right to quiet enjoyment of the premises, because the right to quiet enjoyment does not include a right to refuse a lawfully arranged inspection. The Landlord’s Claims Refusal of Entry
Under s.48(4), “failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under subsections (2) to (3)” is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded.
The tenants prevented the landlord entering the premises to inspect them when the landlord was entitled to do so. The question is whether the circumstances at the time provided a reasonable excuse for that refusal.
My finding is that they didn’t. While the tenants had legitimate concerns about the owner’s failure to notify them of the change of manager, by that time, the property manager’s appointment as manager and her authority to act for the owner was clear. Therefore, she had the right to undertake an inspection and nothing in the tenants’ application suggested legitimate issues with the landlord’s right to inspect the premises.
I therefore find that the tenants committed an unlawful act by refusing to allow it.
Where an unlawful act has been committed intentionally, exemplary damages may be awarded after considering the factors in s.109(3) which are: (a) the intent of that person in committing the unlawful act; (b) the effect of the unlawful act; (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest.
In that regard, it is the intention to commit the act itself ie. denying entry, that is relevant, not an intention to act unlawfully.
Having heard at some length from all parties, my impression from the evidence is that the tenants were feeling vulnerable and wanting to assert what they (incorrectly) understood to be their rights, against the new property manager who they thought was unreasonably forceful in her approach.
That was at the cost of the landlord’s legitimate interest in having an inspection completed.
I take into account the landlord’s contributory fault in failing to immediately keep the tenants informed about management of the tenancy. While it was technically not a breach of the RTA (above), it was unfair for the tenants to be put in the position of breaching their obligation to pay rent arrears under a conditional termination Order, because they did not know where to make payment. I take into account too that the tenants had filed an application with the Tribunal which they expected would determine the issues.
In terms of the pubic interest, it is not acceptable for either party to a tenancy agreement to refuse to meet their statutory obligations because they believe they have a justified grievance against the other party.
Weighing those considerations, I find that a modest award of exemplary damages would be just. Termination for Breach of the June Order
Barfoot and Thompson Ltd, when it told the tenants they would no longer be managing the tenancy, did not consider the tenants to have been in breach of the June Order. Its e-mail of 15 February 2024 notes: “Please continue to follow the Tribunal Order..........as of today you are paid to 04/02/2024 with a part payment of $87.14”
I my view, estoppel principles are relevant here.
In these circumstances, those principles may prevent a landlord enforcing a legal right where the evidence establishes: a. conduct (which could include acquiescence) on the landlords’ part, creating a belief or expectation in the tenants; b. reliance on that expectation by the tenants; c. detriment caused to the tenants as a result of that reliance; d. circumstances meaning that it would be unjust to allow the landlords to go back on the expectation they had created.
Here, the landlord (Barfoot & Thompson Ltd) accepted compliance with the June Order by payments made midweek rather than on the prior Sunday. That gave rise to a legitimate expectation by the tenants that they would not be considered in breach of the Order by continuing to do so. Putting themselves at risk of termination by relying on that expectation, would cause obvious detriment to them.
I find that it would be unjust for the landlord, through a new property manager, to claim an entitlement to termination of the tenancy, due to the tenants continuing that same payment pattern.
To rectify the situation for both parties, the tenants should pay an extra 3 days’ rent with the next rent payment, so that they will then be paying weekly in advance. Termination for Breach of 14 day notice – locks on gates
I do not find it proved that the tenants have altered, added to or removed any lock on the premises in breach of s.46 RTA.
It seems likely that the tenants’ securing of the driveway gates, because they have trouble managing them, has made access to the premises difficult. That is one of the issues the parties have agreed to address at the upcoming inspection.
That claim is dismissed Termination for Breach of 14 day notice – water rates
On 4 April 2024 the landlord issued the tenants with a 14 day notice requiring payment of outstanding water rates, then totalling $638.35.
The tenants did not pay that amount on the basis that they believed the Water Care invoices to be inaccurate, because: a. they were based on estimates not actual readings; and b. the tenants were concerned that replacement of the water meter resulted from a leak. They thought that concern was reinforced by an unusually high water bill around the date the meter was replaced in January.
Time was given to the landlord after the hearing to make enquires of Watercare about the position with replacement of the meter and a possible leak. The hearing resumed by teleconference once that water rates evidence had been provided.
The response from Watercare confirms that: a. the meter was replaced due to difficulties accessing the existing meter on the property; b. those same access difficulties had resulted in bills based on estimations rather than actual readings: c. there had been no leak at the property and the high January bill was due to it being based on a reading and included “catch up” from previous low estimations.
I am satisfied that the amount of $638.35 is properly payable by the tenants for water used by them at the premises.
The tenants have not complied with the 14 day notice requiring payment of those water rates and the Tribunal therefore needs to decide whether, in terms of s.56(1)(c). “....the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.”
In my view, because the tenants had a genuine (though ultimately misplaced) concern about the accuracy of those bills, it would not be inequitable to decline termination.
The tenants must however reimburse the landlord for the cost of that water used by them, within 14 days of this Order. Future water rates charges must be paid when due.
The landlord has correctly invoiced the tenants for the water used by them. It has correctly issued a 14 day notice requiring payment. The tenants will have been aware that they have continued to use water that it is their responsibility to pay for. They have had opportunity to make provision for payment once their concerns about the accuracy of the invoices were addressed.
In those circumstances, while I have declined the landlord’s application for immediate termination, a consequential clause in the Order, that the tenancy should immediately terminate if payment is not made when ordered, would be just.
The landlord has had claims upheld and is entitled to reimbursement of the filing fee.

Tenancy Tribunal case 4825817 — Exemplary damages at 12 Mount Smart Road, Royal Oak, Auckland 1061

At a glance

Tenancy Tribunal case 4825817 — Exemplary damages at 12 Mount Smart Road, Royal Oak, Auckland 1061

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions