What was the outcome of Tenancy Tribunal case 4849685?

The tribunal order states: Hank Ponsteen and Regina Treitschke must pay Kelly Merrie $2,542.00

How much money was awarded in case 4849685?

Compensation: Interference with tena…: $2,000.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $350.00 awarded to landlord; Reimburse Cost Of Truck And Diesel: $308.00 awarded to landlord

What type of tenancy dispute was case 4849685?

The primary dispute was Exemplary damages. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4849685?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10734703-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4849685?

The tribunal order states: Hank Ponsteen and Regina Treitschke must pay Kelly Merrie $2,542.00

How much money was awarded in case 4849685?

Compensation: Interference with tena…: $2,000.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $350.00 awarded to landlord; Reimburse Cost Of Truck And Diesel: $308.00 awarded to landlord

What type of tenancy dispute was case 4849685?

The primary dispute was Exemplary damages. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4849685?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10734703-Tribunal_Order.pdf.

96b Lost Bush Track, Hikurangi, RD 1, Hikurangi 0181 Tenancy Tribunal Case 4849685 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4849685 — net $2,542.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Reimburse cost of truck and diesel	$308.00		Reimburse cost of truck and diesel
Repairs	$350.00		Repairs
Filing fee reimbursement	$20.44		Filing fee reimbursement
Exemplary damages: Failure to lodge bond		$350.00	Failure to lodge bond
Exemplary damages: Failure to provide receipts for rent		$350.00	Failure to provide receipts for rent
Exemplary damages: Failure to provide smoke alarms		$500.00	75. In this instance I will award exemplary damages at the lower end of the scale having regard to the fact that: a.
Compensation: Interference with tenant's belongings		$2,000.00	Interference with tenant's belongings
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$678.44	$3,220.44
Net award		$2,542.00
Total payable by Landlord to Tenant		$2,542.00

Claims and awards in Tenancy Tribunal application 4849685 — net $2,542.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Reimburse cost of truck and diesel	$308.00		Reimburse cost of truck and diesel
Repairs	$350.00		Repairs
Filing fee reimbursement	$20.44		Filing fee reimbursement
Exemplary damages: Failure to lodge bond		$350.00	Failure to lodge bond
Exemplary damages: Failure to provide receipts for rent		$350.00	Failure to provide receipts for rent
Exemplary damages: Failure to provide smoke alarms		$500.00	75. In this instance I will award exemplary damages at the lower end of the scale having regard to the fact that: a.
Compensation: Interference with tenant's belongings		$2,000.00	Interference with tenant's belongings
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$678.44	$3,220.44
Net award		$2,542.00
Total payable by Landlord to Tenant		$2,542.00

Order

Hank Ponsteen and Regina Treitschke must pay Kelly Merrie $2,542.00 immediately, calculated as shown in table below.

Reasons

Background

The tenancy began on 4 July 2022.
The tenanted property is a small cottage near the landlord’s house.
There is no written tenancy agreement.
Ms Merrie moved into the property with her partner Mr Britliff.
Mr Britliff left the tenancy in or around July 2023.
Between July 2023 and December 2023, the landlords gave five “termination notices” to the tenant (three in writing and two verbal).
The parties agreed that the tenancy would end on 21 January 2024. Most of claims before the Tribunal arise from what happened on that day. This is discussed in more detail below.
Ms Merrie’s original application sought compensation for missing belongings. Ms Merrie amended her application to seek exemplary damages under several headings, as detailed in the Case Conference Directions order.
The landlords’ application seeks rubbish removal, storage, and repair costs.
The hearing took place in Whangarei on 21 August 2024. Both parties attended the hearing. Tenant application Law
The Residential Tenancies Act 1986 (“RTA”) applied to this tenancy.
The RTA imposes obligations on landlords and tenants. It also sets out the circumstances in which a tenancy can be terminated.
Tenants can terminate a tenancy by giving 28-days’ notice in writing at any time, for any reason.
Landlords can terminate a tenancy by giving 63-days’ notice or 90-days’ notice, but landlords can only terminate a tenancy in certain circumstances – for example of they are selling the property, or they need the property for themselves or a member of their family to live in 1 .
The Tenancy Tribunal can terminate a tenancy if the tenant fails to pay rent, or causes damage, or commits some other breach of their duties under the terms of the tenancy agreement or of the RTA 2 .
None of the landlords’ attempted termination notices met the criteria set out in the RTA. They were invalid and ineffective notices.
A tenancy may also end by consent, if a tenant “surrenders” the tenancy and the landlord accepts the surrender 3 . 1 Section 51 RTA 2 Sections 55, 56 RTA 3 Section 50(1)(d) RTA
In this instance Ms Merrie agreed to move out on 21 January 2024, but she did so under significant pressure from the landlords, and under the belief that she was obliged to move out because of the landlords’ multiple termination notices.
At the end of a tenancy, tenants must quit the premises, remove all of their belongings, and dispose of any rubbish 4 .
Landlords must not seize or dispose of any of the tenant’s goods 5 .
Landlords may, at the end of the tenancy, dispose of any rubbish left by the tenant (and claim the cost of disposal from the tenant). Landlords must, at the end of the tenancy, store any goods left by the tenant and make reasonable attempts to facilitate the retrieval of the goods by the tenant 6 .
The Tenancy Tribunal must exercise its jurisdiction in a manner that “is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants” 7 Events of 21 January
The landlords offered to arrange for a hire truck to assist the tenant with moving. They told Ms Merrie that they would pay for the hire, and she could pay them back later. Ms Merrie agreed to this.
On the morning of 21 January Ms Merrie had a problem with reception on her phone. Ms Merrie had to drive to a location where she could get reception. When she was parked on the side of the road the landlords happened to drive past. They stopped, and there was a conversation between them. Parts of this conversation are disputed.
Ms Merrie then drove into town to put fuel in her car, before returning back to the property.
She arrived back around midday. When she arrived, the landlords were in the driveway. The entrance gate was locked. The landlords had loaded up the hire truck. Some items were outside the cottage.
Ms Treitschke attempted to serve a trespass notice on Ms Merrie by putting it through her car window. Ms Merrie rejected it.
The landlords permitted Ms Merrie to walk to the cottage, but they did not open the gate.
The landlords took the truck to an address nominated by Ms Merrie. Mr Britliff met them at that address and unloaded the truck. 4 Section 40(1)(e) RTA 5 Section 33 RTA 6 Sections 62, 62A, and 62B RTA 7 Section 85 RTA Later events
On 26 January the landlords allowed Mr Britliff to come onto the property and retrieve more items.
The items were loaded onto the landlords’ trailer. Mr Britliff transferred them to his own trailer.
The landlords asked Mr Britliff to sign a statement that they had prepared. The statement read “I collected the rest of our possessions (tools, camping gear etc and more household items) that were stored on the deck and sheds of our rental property”.
The landlords had boxed some of the items, so Mr Britliff amended the statement to note that he did not know what was inside the boxes.
On 31 January Ms Merrie sent the landlords a text message listing the items that she believed were still at the premises and that (in her view) the landlords had “stolen”.
The landlords replied by text the next day stating: Tools from bottom shed have been collected by Ben Britliff, proof in photos and document. Oil painting has been dropped off at the police station yesterday. The items you are asking for are safely stored here (we thought it was junk). But we are only allowing an independent person, no family member or Ben, to pick them up, ONCE ALL the rubbish has been removed. You are trespassed. After that person can come back to pick up your stuff. You have one week to do this
Ms Merrie involved the police. She sent several messages to the landlord between 7 February and 14 February.
On 21 February the landlords sent a message offering to “deliver junk/items that are still here to your storage unit” for a fee of $110, “on condition that your rubbish has to be removed first”. They then withdrew the offer the next day.
The landlords subsequently disposed of all the remaining items. Findings
The main legal difficulty that the landlords face is that they are attempting to exercise rights (taking back possession, preventing Ms Merrie from coming to the property) and to hold Ms Merrie to obligations (remove belongings, dispose of rubbish) that arise at the termination of a tenancy.
The landlords never issued a valid and effective notice to terminate this tenancy. Ms Merrie was free to ignore all five of the notices that they gave.
It is not accurate to say that Ms Merrie ‘surrendered’ the tenancy. Although she agreed to leave on 21 January
Even if it could be argued that 21 January was legally the final day of the tenancy, unless a particular time is specified for termination, the tenancy continues until 11.59pm on the final day.
This means that on 21 January: a. The landlords had no right to be inside the cottage unless Ms Merrie agreed. b. The landlords had no right to touch any of Ms Merrie’s belongings unless she agreed. c. The landlords had no right to lock the gate and restrict access. d. The landlords had no right to issue a trespass notice to Ms Merrie.
The landlords unlawful actions on 21 January deprived Ms Merrie of the opportunity to remove her belongings in a peaceful and orderly way.
The landlords did make some efforts after 21 January to allow Ms Merrie to retrieve her belongings, but these were efforts to remedy a problem that the landlords had created themselves.
The tenant’s application seeks compensation for household items that she never got back ($15,000.00) and exemplary damages for unlawful entry.
The landlords seek compensation for removing household items, storage, cleaning, and rubbish removal.
Applying the legal principles discussed above, my findings are: a. The landlords re-took possession before they were legally entitled to. They deprived Ms Merrie of the opportunity to leave the premises reasonably clean and tidy and remove all rubbish at the end of the tenancy. The landlords cannot recover rubbish removal, cleaning, or storage costs. b. It is practically impossible for Ms Merrie to evidence what items she did not get back at the end of the tenancy, and the value of those items. I accept the general principle that there were many items. I have also had regard to the fact that Ms Merrie had some opportunity retrieve her belongings after 21 January, albeit on terms unilaterally imposed by the landlord. c. I will make an award of general damages of $2,000.00, taking into account: i. It is certain that Ms Merrie did not get back all of her belongings, but it is not possible to prove what those items were or the value of them. ii. The landlord acted unlawfully by effectively re-taking possession of the premises at around midday on 21 January, and by handling Ms Merrie’s personal property without her consent. Other claims in the tenant application
Ms Merrie seeks exemplary damages for: a. Failure to pay the bond to the Bond Centre. b. Failure to provide receipts for rent. c. Failure to keep proper business records. d. Failure to provide smoke alarms.
The Tribunal may award exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally. In considering an award of exemplary damages, the Tribunal must have regard to: 8 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest. a. Bond
Ms Merrie paid a bond of $580.00 at the beginning of the tenancy.
The landlords acknowledge that they did not pay the bond to the Bond Centre.
Failure to pay the bond to the Bond Centre within 23-working days of receipt is an unlawful act. 9 Exemplary damages of up to $1,500.00 can apply.
Mr Ponsteen and Ms Treitschke said that they were not aware of the duty to pay bonds to the Bond Centre.
The fact that the landlords were not aware of the duty to lodge the bond does not absolve them from liability 10 . However, it is a relevant consideration when assessing an appropriate award of exemplary damages.
I will award exemplary damages of $350.00. b. Receipts for rent 8 Section 109 RTA 9 Section 19(2) RTA 10 TMT New Zealand Limited v Sweeney & Sundahl [2021] NZDC 16182
If a tenant pays rent in cash, the landlord must give the tenant a written receipt immediately. 11
A breach of this duty is an unlawful act. Exemplary damages of up to $350.00 can apply for every breach.
Ms Merrie paid her rent in cash at the landlords’ request. She was not given any receipts.
The landlords said that they offered Ms Merrie a receipt, but she declined. Ms Merrie disputed this.
Landlords have a positive legal duty to give the tenant a receipt of the tenant pays rent in cash. It is proven that the landlords did not give Ms Merrie any receipts for her many cash payments. It is not proven that the landlords offered Ms Merrie a receipt.
I will make an award of exemplary damages. It would be unjust to make a cumulative award exemplary damages for every occasion that the landlords failed to give a receipt.
I will award exemplary damages of $350.00. c. Failure to keep business records
Landlords must keep “proper business records showing all payments of rent by or on behalf of the tenant”. 12
This obligation applies throughout the tenancy, so the landlord must keep a contemporaneous rent record.
A breach of this duty is an unlawful act. Exemplary damages of up to $350.00 can apply.
Ms Merrie said that the landlords did not keep a record of her rent payments.
At the Case Conference hearing the landlords seemed unaware of this duty. At the hearing on 21 August, Ms Treitschke somewhat surprisingly produced a handwritten rent record. Ms Merrie suspected, not unreasonably, that Ms may have created the document retrospectively after she was made aware of the legal duty to have a rent record. However, Ms Treitschke made a positive statement to the Tribunal that she did in fact keep the written record during the tenancy, and she had simply forgotten about it.
Exemplary damages are punitive, and suspicion that a landlord may have committed an unlawful act is not sufficient grounds for an award of exemplary damages. 11 Section 29(1) and 29(2)(a) RTA 12 Section30(1)(a) RTA
I accept Ms Treitschke’s statement that she kept the rent record during the tenancy, and I will not make an award of exemplary damages in this instance. d. Smoke alarms
Ms Merrie said that there was a fire extinguisher in the property but there were no smoke alarms.
The landlords were adamant that there were smoke alarms in the premises, but they had no evidence of this. At the hearing I attempted to clarify with Mr Ponsteen where the smoke alarms were and when they were put in. Mr Ponsteen’s oral evidence was, to say the least, unclear and unpersuasive.
I am satisfied that it is more likely than not that there were no smoke alarms in the premises.
This is an unlawful act that carries a very high maximum award of exemplary damages - $7,200.
In this instance I will award exemplary damages at the lower end of the scale having regard to the fact that: a. There is very little good evidence in front of the Tribunal about the presence or absence of smoke alarms. b. I accept that the landlords genuinely believed that there were smoke alarms in the premises. It does not appear that Ms Merrie raised any concerns about smoke alarms during the tenancy.
I will award $500.00. Other claims in the landlords’ application
The landlords’ claims for cleaning, rubbish removal, and storage costs are dismissed for the reasons given above.
The landlords also seek: a. Truck hire and diesel cost $308.00 and cost of ‘helper’ $300. b. The cost of replacing the bathroom door and repairing a hole in the wall in the kitchen. c. Compensation for “stress and trauma”. a. Truck hire etc
I will award the truck hire and diesel costs because Ms Merrie clearly agreed that she would reimburse the landlords for those costs.
There was no such agreement in respect of the ‘helper’ that the landlords engaged. b. Repairs
The bathroom door was damaged during the tenancy. The tenant repaired the door. The landlords say that the repair failed, and the door needed to be replaced.
The landlords’ photographs do not show the failure of the repair, but the landlords’ oral evidence was clear enough to establish, to the standard of “more likely than not” that the repair failed and that it was necessary to replace the door.
The landlord also seeks the cost of repairing minor damage to a wall, where the tenant took down the fire extinguisher. Ms Merrie said that this damage was repaired during the tenancy, but the landlords provided a photograph of the damage that was taken on 22 January.
My finding is that Ms Merrie is liable for the reasonable cost of replacing the door and repairing the wall. The claim seeks $60.00 for replacement of the door, and compensation for Mr Ponsteen’s time in carrying out the repairs.
I will award $350.00 for these repairs. c. Stress and trauma
The landlords’ written submission sets out the difficulties that the landlords experienced during this tenancy.
I acknowledge that their experience was stressful and unpleasant.
However, operating a rental property is running a business. Running a business involves some degree of stress and risk. The difficulties that the landlords have experienced have been made worse by their lack of understanding of the law. If Ms Merrie breached her obligations as a tenant (for example, by failing to pay rent on time, by failing to keep the premises reasonably clean and tidy, or by causing an unreasonable interference with the peace and privacy of her neighbours) then the landlords had options. They could have issued breach notices and sought termination of the tenancy through the Tenancy Tribunal. Filing fee, outcome
Both parties have been partially successful in their applications, and both are entitled to recover the filing fee. 13
The landlords must pay the tenant $2,542.00 per the calculation above.

Tenancy Tribunal case 4849685 — Exemplary damages at 96b Lost Bush Track, Hikurangi, RD 1, Hikurangi 0181

At a glance

Tenancy Tribunal case 4849685 — Exemplary damages at 96b Lost Bush Track, Hikurangi, RD 1, Hikurangi 0181

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