Published tribunal order
Tenancy Tribunal case 4835660 — Exemplary damages at 5 Mongorry Place, Mount Roskill, Auckland 1041
Decided 13 Aug 2024 · Published 13 Aug 2024 · Application 4835660
Tenant favoured
- Exemplary damages
Order
- Fahey Property Management Limited as Agent for Miriam Gibbs must pay Lisa- Marie Samuelu-Wood $6,520.44 immediately as calculated in the table below.
Reasons
- Both parties attended the hearing.
- The landlord was represented by Ms Dazzler. The property manager Ms Fahey, whose actions the hearing were about, did not attend or give evidence.
- The tenant had expected the Ms Fahey would be present. I am satisfied that the tenant will not be prejudiced by Ms Fahey’s absence. Otherwise, I would have adjourned the hearing to allow Ms Fahey’s attendance to be required through witness summons.
- The application names Ms Fahey as a party. It seems clear that at all times Ms Fahey was acting in her capacity as property manager for the landlord company, so it is not appropriate than any Orders be issued against her personally. Claims
- The tenant claims exemplary damages for the landlord: a. failing to ensure compliant smoke alarms were installed in the premises; b. breaching her right to quiet of enjoyment of the premises in circumstances that amounted to harassment; c. unlawfully terminating the tenancy;
- The application included claims for breach of privacy and defamation. Those are matters which have their own statutory remedies outside the jurisdiction of this Tribunal. The effect of any unlawful act on the party against whom it was committed, are taken into account in considering whether it is just to award exemplary damages under s.109(3). Smoke Alarms
- Under section 45(1)(ba), a landlord must comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- Breaching that obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant’s evidence is that no smoke alarms were installed in the premises. She says that during the tenancy she found some smoke alarms in a cupboard.
- The landlord says that the smoke alarms the tenant found were old alarms and that the property manager was told by the owner that a new smoke alarm had been left on the doorstep of the premises for the tenant. The tenant denies having been provided with a new smoke alarm by that or by any other means.
- Neither the property manager nor the owner has given evidence and I have no reason to disbelieve the tenant’s evidence. Even had a new smoke alarm been “dropped off” for the tenant, that would not meet the landlord’s obligation to ensure that compliant smoke alarms were installed.
- I accordingly find that the landlord has 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) Residential Tenancies Act 1986.
- There is no evidence on which I can assess the landlord’s intentions in failing to ensure the premises were protected by compliant smoke alarms. There was no direct impact on, or harm caused to the tenant and no evidence of the tenant having raised with the landlord a concern about the absence of smoke alarms.
- It is however a fundamental breach of the landlord’s obligations, which exposed the tenant to risk for the short period she was living in the premises. The public interest requires that landlords be encouraged to take such important safety responsibilities seriously.
- Those considerations persuade me that a modest award of exemplary damages would be just.
Was the tenant harassed by the landlord?
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- 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.
- Much of the background to this matter is set out in an Order of the Tribunal dated 29 February 2024 (application 4803840) (“the February Order”) in which an order for termination of the tenancy was made by consent and does not need to be repeated here.
- On 10 January 2024 at 5:17 pm the property manager emailed the tenant, “... just wanted to let you know that the owner has only just lost her husband so it's all a big adjustment for her I know that you respect her grief. If your guests can maybe leave now so she can get used to having you around for now. Much appreciated.” The next day at 6:30pm the property manager emailed, “I know yesterday was an unfortunate start but going forward I hope this can be a quiet place for all. Can I ask if the children that were there, are they your children?”
- On 18 January 2024 the police visited the premises to do a bail check of the address as a residence for the tenant’s partner. They used the wrong entry and the owner, who lives in an adjoining part of the property became aware of the visit.
- At around 8:30pm on that day the property manager phoned the tenant, insulting and abusing her, accusing her of being a criminal and that she was a “piece of shit” and needed to be out of the property by the next day. Ms Fahey said she intended to come to the premises the next day.
- The tenant txt her, “May I please have a time you till be coming over tomorrow as I would like to have a support person with me as I feel I will be uncomfortable being here with you after the way you spoke to me on the phone tonight....”.The property manager responded in a series of txts including, “No you have to leave tomorrow I will pay your moving costs...Pack up and go....I will change the locks at 3pm tomorrow.”
- The tenant asked, “..may I please ask what clause it is I am being evicted under”, to which the reply was, “......I have reported you to the police and they know and I fucked up you are criminals first time I ever got it wrong.”
- That “conversation” is not denied by the landlord, nor is it denied that it constituted an extreme breach of any appropriate standards by Ms Fahey.
- There were several exchanges between the tenant and the property manager the next day in which the tenant asserted that she would not be moving out and that she believed she was entitled to a 14 day notice in respect of the claimed breach of her obligations.
- The premises were advertised as suitable for occupation by 2 people but the tenancy agreement specified the a maximum number of occupants as 1. The tenant’s evidence, which I have no reason to disbelieve and which is corroborated by the communications between she and the property manager, is that she was not aware that the agreement did not allow her to have any other people living at the property.
- No 14 day notice was given by the landlord in terms of s.56 but the tenant confirmed that her partner would be gone within 14 days. Arrangements were made for another address to be approved for her partner and later on 19 January 2024 the tenant emailed the property manager, “Just confirming [my partner] will be gone to another address by Tuesday next week....”
- Twice on that Tuesday, 23 January 2024, the property manager e-mailed the tenant asking about whether her partner had left. The tenant was asked to visit him away from the premises in future.
- The next day, 24 January 2024 at 11:07pm the property manager e-mailed the tenant “Can you please get off your phone you are disturbing the neighbours. Clearly [your partner] is not gone and please don’t smoke pot or anything else on the property. You did not get approval from me to give this property as a parole address for your boyfriend. We are applying for immediate termination.”
- On 27 January the property manager e-mailed, “the 14 days has expired and we understand your partner is still there. It didn't seem to take any time to get the approval for him to be there so not sure why it's taking so long to relocate him? How much longer please?” As pointed out by the tenant in her response, had the property manager acted properly and given a 14 day notice in respect of the claimed breach, by that day the 14 day notice would not have expired.
- On 1 February 2024 (still within 14 days from 19 January) the property manager e-mailed again, “We are still waiting on confirmation [your partner] has moved to his mother's as promised?
- On 2 February 2024 the property manager issued a breach notice, again not as required by s.56, “This serves as the first breach notice for smoking marijuana in the property. This is an illegal activity and is in breach of your tenancy agreement. This must cease immediately.”
- There was no prior conversation with the tenant, which would have revealed, as recorded in the February Order, “evidence of [the tenant’s] partner’s prescription for medical cannabis, which would allow the consumption of cannabis. This is not an unlawful activity in the circumstances...... I note that the landlord also relied on the “no smoking” provision of the tenancy agreement and a 14-day notice issued for that. However, there is no evidence that smoking was inside the house, nor is there any evidence that the smoking continued after the issuing of the 14-day notice.”
- On 9 February 2024 the property manager e-mailed the tenant, “We will be arranging drug testing for both the flat and shed next week. The testing company will be in touch to arrange a time.” The tenant di not object. The resulting finding in the February Order was that, “The composite total was .06μg per 100 cm 2 from 7 swabs. This is not a case where there was any risk of a false positive result, this is very clearly a negative result for methamphetamine, and the landlord’s allegation in relation to methamphetamine is entirely spurious.”
- The evidence shows that the property manager: b. abused and insulted the tenant in the most shameful way; c. told, and repeated to the tenant, that she had to be out by the next day and that the locks would be changed; d. failed to give any proper 14 day notice for the claimed breach by the tenant by having her partner living at the premises; e. hounded the tenant about her partner being found somewhere else to live; f. gave an improper notice, without the prescribed 14 day remedy period, for the (wrongly) claimed breach by smoking cannabis at the premises, without giving the tenant the courtesy of any discussion first; g. made unreasonable demands – emailing after 11:00pm “can you please get off your phone...”, when the tenant was speaking with her sister, and by asking that the tenant not have her partner visit; h. arranged for methamphetamine testing of the premises without any apparent evidential cause; i. applied without grounds for termination of the tenancy, then pursued that application to a Tribunal hearing, even after the tenant had given notice of termination. On the tenant giving notice of termination the property manager responded “This is fantastic news but I will not be withdrawing the application...”
- I cannot interpret the evidence provided as showing other than a, “..particular pattern of behaviour directed towards another person, intended to "to trouble, worry or distress" or "to wear out, tire, or exhaust."
- There may be evidence showing some different interpretation or mitigation, but the landlord has chosen not to have the property manager give evidence.
- The landlord suggests there is fault on the tenant’s part for the fractured relationship between she and the property manager, for what is claimed to be fraud committed by the tenant in the information provided in her tenancy application.
- The February Order found, “The evidence falls well short of providing a basis for concluding that the tenant has made misrepresentations about her referee, about her employment (the landlord alleges a “fake” LinkedIn profile) or her status as a student (again the landlord has alleged this cannot be corroborated, although I note she has not asked the tenant for any evidence of the fact she is a student).”
- I find that the landlord has committed an unlawful act by interfering with the tenant’s right to quiet enjoyment of the premises in circumstances that amount to harassment.
- Again, I refer to the existing finding of the Tribunal in the February Order that, “The landlord appears to have reacted to a dislike of the tenant’s partner and taken hasty action to terminate the tenancy without any attempts at communication or consideration for an appropriate process, including notice to remedy a breach.”
- Having regard to the s.109(3) factors noted above, I can find little in the evidence providing explanation or mitigation for the property manager’s actions. The tenant does acknowledge that for a while the property manager did seem genuinely willing to help her find other accommodation, but in the end the tenant found somewhere else herself. It may be that the property manager was under significant pressure from the property owner but that is simply conjecture and the property manager is not here to give evidence about the situation from her perspective.
- My finding is that although the tenancy ended by the tenant giving notice of termination, the landlord’s actions had effectively and intentionally made it untenable for the tenant to remain living at the premises – ending a 12 month fixed term tenancy.
- I find that an award of exemplary damages toward the higher end of the available range would be just. Unlawful Termination
- Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
- Breaching that obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- The landlord says that no breach was committed because the tenancy was ended by notice from the tenant.
- That submission ignores that before the tenant gave notice of termination, the landlord had: a. told the tenant she must be gone by the next day; b. repeated that she must leave the next day and that the locks would be changed; c. told the tenant, “we are applying for immediate termination...” d. brought and pursued an application for termination where it was found by the Tribunal that, “...an order for termination of the tenancy would be entirely inappropriate.”
- Only the property manager is able to give evidence about her intention in telling the tenant to leave and making application for termination of the tenancy. In my view any familiarity at all with the provisions of the RTA should have made it obvious that there were no grounds for the tenancy to be terminated. The fact that the application was pursued to a hearing, even after the tenant had given notice of termination, leads to an inference that the application was brought for reasons other than a genuine belief that termination was warranted.
- That, on top of the landlord having made it clear that the tenant must find somewhere else to live, persuade me that the notice to the tenant that she must leave the next day and the application brought to end the tenancy were actions taken by the landlord to end the tenancy, knowing it was not entitled to terminate the tenancy and were therefore in breach of s.60AA.
- The landlord has thereby committed an unlawful act.
- In terms of the effect of that act on the tenant, it is part of the pattern of conduct referred to above, that I can only interpret as intended to force the tenant from the tenancy.
- Exemplary damages have been awarded to the tenant for that behaviour, in having constituted harassment of the tenant.
- There can be few more unlawful ways to give notice of termination than to do so late at night, accompanied by abusive and insulting behaviour, saying that the tenant must be out by the next day and the locks will be changed.
- Given the award of exemplary damages made for harassment of the tenant, I must also take into consideration that it would not be just to award further exemplary damages for essentially the same conduct although it might constitute a separate unlawful act under the RTA.
- Bearing those factors in mind and that the harassment for which exemplary damages have been awarded includes harassment by seeking to terminate the tenancy, I find that the award of exemplary damages for breach of s.60AA should be limited to 50% of the maximum
- Because Lisa-Marie Samuelu-Wood has substantially succeeded with the claim I must reimburse the filing fee.
- Suppression Orders are not sought.