What was the outcome of Tenancy Tribunal case 4858746?

The tribunal order states: John Zam is granted possession of the premises at 38 Riverpark Crescent,

How much money was awarded in case 4858746?

Compensation: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4858746?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Leaks, Compensation.

Where can I read the official tribunal order for case 4858746?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10527711-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4858746?

The tribunal order states: John Zam is granted possession of the premises at 38 Riverpark Crescent,

How much money was awarded in case 4858746?

Compensation: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4858746?

The primary dispute was 14-day notice. Related themes: Cleanliness, Healthy homes, Exemplary damages, Leaks, Compensation.

Where can I read the official tribunal order for case 4858746?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10527711-Tenancy_Tribunal_Order.pdf.

38 Riverpark Crescent, Henderson, Auckland 0610 Tenancy Tribunal Case 4858746 — 14-day notice

Claims and awards in Tenancy Tribunal application 4858746. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately being compensation of	$1,000.00		immediately being compensation of

Claims and awards in Tenancy Tribunal application 4858746. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
immediately being compensation of	$1,000.00		immediately being compensation of

Order

John Zam is granted possession of the premises at 38 Riverpark Crescent, Henderson, Auckland 0610 immediately (by consent).
John Zam must pay Patrice Douglas $1,000.00 immediately being compensation of $1,000 for failure to maintain.
The tenant’s claim in relation to retaliatory notice is dismissed.

Reasons

Both parties attended the hearing. Mr Zam attended with a support person.
The tenant filed a claim on 11 April 2024 seeking: a. a declaration that a 90 day notice given by the landlord to terminate the tenancy was retaliatory; and b. compensation for the landlord’s failure to maintain the property.
The landlord filed a claim on 12 May 2024 seeking possession of the property.
Each party bears the onus of proving their claim to the civil standard (on the balance of probabilities). For the sake of brevity I have not referred to all of the evidence filed and referred to by the parties, but the parties should be assured that I have carefully considered all of the evidence in making this decision.
This claim relates to the tenancy of a standalone property located in Henderson, West Auckland. This was a very long standing tenancy of 19 years. The tenancy began on 12 July 2005.
The owner of the property is in fact Treadstone 82 NZ Limited but the original tenancy agreement is between the tenant and a property management company.
Mr Zam is a director and shareholder of Treadstone 82 Limited. He wrote to the tenant on 22 February 2018 advising that the previous property manager who had been acting as the landlord no longer had any authority and that all rent should be paid to him from that point on. The tenant was not provided with any change of landlord details but from that point on dealt with Mr Zam who filed his application in his own name (and the tenant’s application named Mr Zam as landlord). Retaliatory notice
Ms Douglas says she received a termination notice that was retaliatory. She seeks compensation and exemplary damages.
Mr Douglas says that in 2023 she engaged with Te Puna Manawa Health West who work with families to assess tenancies in various circumstances.
Ms Douglas explained that a Healthy Homes report was completed (although I note that the compliance date for this property is not until 1 July 2025) and when the report was raised with Mr Zam on Friday 2 February 2024 he served a notice terminating the tenancy the following Monday 5 February 2024 (although dated 1 January 2024). Ms Douglas explained that Mr Kellett who had communicated with Mr Zam was overseas and so was not able to give evidence about his communications with Mr Zam, although Mr Kellett’s colleague, Ms Hall, gave evidence regarding a conversation that she had with Mr Kellett in which she says that he communicated with Mr Zam.
Mr Zam denies having any conversation with Mr Kellett and says that he is 83 years old, that he and his wife no longer wish to have the hassle of owning a rental property and decided to sell it. He says that without having received any communication relating to the tenancy in relation to Healthy Homes he issued a 90 day notice to the tenants dated 1 January 2024 and sent it to the tenant by courier.
The 90 day notice stated that: “This is to advise you that due to age we do not wish the stress in dealing with the problems associated with owning rental property so have decided to divest ourselves of 38 Riverpark Crescent Henderson. Therefore 90 (ninety) days notice is given to vacate the premises at 28 Riverpark Crescent Henderson by May 4 th 2024”
The notice also suggested that the tenant may wish to purchase the property but this did not eventuate, and I was advised that the property has now been sold to a third party.
Section 54 of the Residential Tenancies Act 1986 (“RTA”) provides that a termination notice may be declared retaliatory and of no effect where within 28 working days after receipt of the notice terminating the tenancy, the tenant may apply for an order declaring that the notice is of no effect on the ground that, in giving notice, the landlord was motivated wholly or partly by the exercise of proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or the RTA or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
The 28 day period for filing is mandatory. See Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081: “In my view, s54 is jurisdictional, and absent any application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant’s control, such as documents being lost in the post of computer or internet outage of inaccessibility”.
There was a difference in evidence about the date of the 90-day notice. While it was dated 1 January 2024, and Mr Zam maintained that it had been signed on this date and delivered shortly after, I find that the notice was in fact incorrectly dated and was delivered on 5 February 2024 as claimed by Ms Douglas. This is because: a. The notice recorded the 90 day period to expire on 4 May 2024, which is 90 days after 4 February 2024; and b. Ms Douglas provided email correspondence dated 5 February 2024 from Mr Kellett dated 5 February 2024 stating that he had just received the notice and that he considered the date of 1 January 2024 to be in error.
However even if the notice was served on the date claimed by Ms Douglas, 5 February 2024, her application was not filed until 11 April 2024, 16 days after the mandatory period which ended on 15 March 2024 (these dates take into account the definition of “working days” set out in section 2 of the RTA and exclude various public holidays). This is not an overrun of a few days for a good reason.
Because the application was made well outside the time limit I have no jurisdiction and the claim must be dismissed. Failure to maintain
Ms Douglas says that the property was not maintained and that while Mr Zam did sometimes arrange for necessary repairs when informed of issues there were ongoing problems that were not dealt with (such as guttering and trimming of trees) and that Mr Zam did not ever attend to do inspections and check on the state of the property. Ms Douglas said that she was reluctant to raise issues with Mr Zam because she was fearful that he would terminate her tenancy if she did so.
Mr Zam said that he tried to inspect the property but was told that could not come onto the property. He said that he did repairs whenever the tenant told him about issues. He said that the rent was cheap for the property ($445 per week) and he had last raised the rent in 2019.
Mr Zam provided evidence of specific issues that were raised with him and actions taken as follows: a. Replacing a stove that was not working; b. Repairing a leaking hot water cylinder; c. Repairing a leak that occurred in the roof of washhouse; and d. Consulting with an arborist over concerns regarding a large tree by the house.
I accept that Mr Zam did take actions when repairs or concerns were specifically raised with him. The tenant could not point to any particular outstanding repairs that had been raised with him and not completed (although I note a difference in evidence regarding whether the issue raised about an overgrown tree issue had been satisfactorily resolved).
There is however an ongoing obligation on a landlord to actively maintain a property. I accept the tenant’s evidence that the deck had become worn and unsafe over time, the fence had become broken (both documented by photos) and that the gutters were not cleaned regularly. The Healthy Homes report commissioned by the tenant discloses various maintenance concerns, documented by photos, as follows: a. The gutters needed to be cleaned regularly and that there was some water leakage from the downpipe; b. A light and some power points were not working; c. There was some water ingress in the bathroom.
I have carefully reviewed the evidence and it is clear that the relationship between the landlord and the tenant became very difficult over time. The tenant told the landlord that he could not come onto the property (she says as the statutory 48 hour notice had not been given while Mr Zam said he understood the tenant did not wish him to come onto the property at any time for any reason). The tenant served the landlord with a 14 day notice, by placing the notice in his letterbox, which then led the landlord to issue a trespass notice against the tenant. It appears from that point communication has broken down.
Regrettably such situations are not unusual and despite such a breakdown in the relationship the landlord is still under an obligation to maintain the property. The landlord as an absolute right of entry to carry out maintenance as set out in section 48 of the RTA. The landlord was in breach of his obligations by not doing so over a period of years.
I also accept that the landlord did at one stage in early 2020 decide to do a renovation and was told by the tenant that the timing was not suitable as her son was very unwell. The tenant provided evidence confirming this position. I also accept that Covid-19 restrictions made it difficult to enter and carry out maintenance, although note that those restrictions have been lifted at least two years ago.
I consider that an award of compensation is required as the landlord has breached their obligations. In deciding what award is appropriate I have taken into account that the rent has only increased by a small amount from the start of the tenancy, and that the landlord has addressed specific issues raised with him and made repairs. In all the circumstances I consider that an award of $1,000 to be appropriate.
Breaching the landlord’s obligation to maintain 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.
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.
An intentional act is a deliberate act, not a negligent or careless oversight, not does it catch mere incompetence 1 . Despite my finding regarding the lack of maintenance, my impression is that the landlord genuinely believed that he was meeting his obligations by attending to specific repairs as they were raised by the tenant. He had operated in that manner without apparent challenge since at least 2018.
I therefore do not consider that an award of exemplary damages is warranted in this case. 1 See Birch v Otautahi Community Housing Trust [2020] NZDC 17667, Stoeveken v Aso & Toheriri [2022] NZDC 9698 and TMT NEW Zealand Limited TA Strata Property Management v Sweeny and Sundahl [2021] NZDC 16182. Possession
At the hearing the parties agreed that the tenancy would end and that possession would be granted immediately to Mr Zam. I have therefore made an order for immediate possession by consent.
Ms Douglas handed the keys to Mr Zam during the hearing. She explained that she and her family had found another tenancy and had been working around the clock to move all their possessions out. Ms Douglas explained that there would likely be some additional cleaning required and that there were some items that she was not able to remove (such as a couch and a trampoline) and that she wanted to discuss arrangements with Mr Zam. I encourage the parties to see if they can reach an amicable resolution regarding these issues.
I record that Ms Douglas advised Mr Zam at the hearing that rent was paid up until end of day tomorrow, 3 July 2024, but make no finding about that as I did not review any evidence regarding rent paid and this was not an issue for me to determine. Filing fees and suppression
As Ms Douglas’ claim has been only partially successful, and as Mr Zam’s application has been resolved by consent, I have not refunded the filing fees.
Neither party sought a suppression order.

Tenancy Tribunal case 4858746 — 14-day notice at 38 Riverpark Crescent, Henderson, Auckland 0610

At a glance

Tenancy Tribunal case 4858746 — 14-day notice at 38 Riverpark Crescent, Henderson, Auckland 0610

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions