What was the outcome of Tenancy Tribunal case 4879144?

The tribunal order states: Anemax Property Management Limited as Agent for Duong and Helena Hang

How much money was awarded in case 4879144?

Cleaning: $10.90 awarded to landlord; Compensation: breach of right to qui…: $450.00 awarded to tenant; Compensation: withhold consent to as…: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4879144?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4879144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10711999-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4879144?

The tribunal order states: Anemax Property Management Limited as Agent for Duong and Helena Hang

How much money was awarded in case 4879144?

Cleaning: $10.90 awarded to landlord; Compensation: breach of right to qui…: $450.00 awarded to tenant; Compensation: withhold consent to as…: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4879144?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4879144?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10711999-Tenancy_Tribunal_Order.pdf.

21 Banks Road, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 4879144 — Cleanliness

Claims and awards in Tenancy Tribunal application 4879144 — net $759.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: replacement key	$10.90		Carpet Cleaning: replacement key
Compensation: withhold consent to assignment		$300.00	withhold consent to assignment
Compensation: breach of right to quiet enjoyment		$450.00	breach of right to quiet enjoyment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$10.90	$770.44
Net award		$759.54
Total payable by Landlord to Tenant		$759.54

Claims and awards in Tenancy Tribunal application 4879144 — net $759.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: replacement key	$10.90		Carpet Cleaning: replacement key
Compensation: withhold consent to assignment		$300.00	withhold consent to assignment
Compensation: breach of right to quiet enjoyment		$450.00	breach of right to quiet enjoyment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$10.90	$770.44
Net award		$759.54
Total payable by Landlord to Tenant		$759.54

Order

Anemax Property Management Limited as Agent for Duong and Helena Hang must pay Megan Liddell, Madison Coombes and Hoi Sze (Joyce) Lu $759.54 immediately, calculated as shown in the table below.

Reasons

All parties attended the hearing.
The landlord was represented by the property manager Mr Chen. Mr Chen was named as a respondent party in the application but it is clear that at all times he was acting in his capacity as property manager for the landlord and so should not be a party to this Order personally. Background
This tenancy has seen a number of changes of tenant(s).
A fixed term contract from 20 November 2021 to 31 January 2023 was signed with the then tenants, Rachel Lee, Christine Lee and Michelle Lee. Rachel and Michelle Lee moved out during 2022.
A new fixed term tenancy agreement was signed for a term from 4 February 2023 to 31 January 2024 with the tenants being Christine Lee and two other tenants introduced by her, Abigail Yiu and Hoi Sze (Joyce) Lu, who is one of the applicants.
Ms Lee and Ms Yiu left the property in August/ September 2023 and were replaced by the applicants Ms Liddell and Ms Coombes.
At the point the fixed term ended on 31 January 2024, a notation was made to the agreement “As no new fixed term agreement was negotiated the lease became a periodic lease on 01.02.2024 current tenants at 01.02.2024 were Hoi Sze Lu, Megan Liddell and Madison Coombes... Abigail Yiu moved out on
8.23 replaced by Megan Liddell Christine Lee moved out on 02.09.2023 replaced by Madison Coombes”
Change of tenancy forms were signed by the tenants for bond purposes.
On 30 January 2024 Ms Lu text Mr Chen, “I will be moving out of the flat on the 24th and I am currently finding another girl to replace my room. There is a girl that is interested in renting my room...”
Mr Chen replied on 1 February “Hi Joyce...I believe all the tenant who originally signed the contract are moving out now. We will prefer if you want to end the tenancy, then we more looking at refunding new tenant. Can you please discuss with your flatmate?”
Ms Lu responded “...can you please clarify what you meant earlier? Some people who are living in the flat at the moment weren't planning to move out. Do you mean that you would like to tie up the contract we have currently and the other girls would be able to keep living in their house on our new contract with you? Or that you would like for everyone to move out.”
Mr Chen’s response was, “...as mentioned earlier the tenant who signed the contract originally, only you left, if you're going to move out we prefer you give us proper notice to end tenancy. And the owner can decide what you want to do next.”
It seems that the owner had preferred that the be a “fresh start” and a more consistent occupancy of the premises. That is different to how the tenancy had previously been managed.
This led to an ongoing exchange, with the tenants making it clear that the intention was not that the tenancy be ended but that Ms Lu’s position be taken up by another tenant. Subsequently, Ms Liddell also confirmed an intention to vacate the premises but on the basis that Ms Coombes wished to remain in occupation. Details of the persons who they proposed would be the new tenants, were given.
The property manager, after some discussion with the owner, offered that the tenancy could be taken by Ms Coombes as “head tenant”.
The outcome is what the tenants had intended, ie. Ms Lu and Mrs. Liddell have vacated the premises. Ms Coombes remains in occupation and a tenancy has been established with Ms Coombes and the two woman proposed by Ms Lu and Ms Liddell as their replacements. Claims
No orders are required regarding the status of the tenancy. The outcome is as the tenants had wished.
However, the tenants claim that the landlord acted wrongfully in not giving proper consideration to Ms Lu’s wish to assign her interest in the tenancy to a replacement tenant and instead continued to insist that she give notice to end the tenancy, requiring that they all leave the premises.
The landlords first point is that the agreement provides, “Any notice given by the tenant or any tenant where there are more to a more tenants shall operate to terminate the tenancy as a whole and the tenancy shall come to an end on the day referred to in the notice whether or not any other tenant shall concur with the giving of the original notice”.
The communications put in evidence persuade me that Ms Lu had not given notice of an intention to terminate the tenancy. What she was requesting was that her rights under the tenancy agreement be assigned to a person proposed as her replacement. It was made clear from the outset that she did not want to terminate the tenancy, which would jeopardise the position of Ms Liddell and Ms Coombes.
The landlord’s second point is that the agreement says, “The tenant shall not assign sublet or part with possession of the premises....or any part thereof during the term of the tenancy.”
However, that term is in conflict with s.43A(1) RTA, which provides “A provision in a tenancy agreement that prohibits the tenant from assigning the tenancy is of no effect.”
Section 43B deals with assignment of tenancies and it is helpful to set it out in full. “Assignment of tenancy by tenant (1) A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord. (2) Subsection (1) does not apply in the circumstances described in section 43A(2). (3) A tenant commits an unlawful act if the tenant assigns the tenancy— (a) without the prior written consent of the landlord; or (b) if the tenancy is a tenancy described in section 53B(1)(a), in contravention of a provision described in section 43A(2). (4) If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4) commits an unlawful act. (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms. (8) A landlord’s consent must be taken to have been withheld unreasonably if the withholding of the consent is an unlawful act under section 12 (discrimination to be unlawful act). (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms.”
My assessment is that: a. Ms Lu was entitled to have her request to assign her rights under the tenancy given reasonable consideration. b. Mr Chen’s genuine understanding was that at that time, Ms Lu was the sole tenant and her moving out would constitute termination of the tenancy. c. Mr Chen was mistaken about that. Ms Lou had requested consent to an assignment, and she was entitled to have that given consideration.
Mr Chen did respond reasonably promptly.
In Mr Chen’s initial response, the offer to accept a surrender of the tenancy was not on reasonable terms because it meant that initially both Ms Liddell and Ms Coombes and later Ms Coombes alone, faced the prospect of losing their residence. I therefore find that initially, the landlord unreasonably withheld consent to the assignment.
Later, the offer to create a new tenancy with Ms Coombes as the tenant, constituted an offer to accept a surrender of the existing tenancy on reasonable terms for the purposes of s.43B(7) and that is what has happened.
In those circumstances I would not find it just to make an award of exemplary damages against the landlord. I do however find that the landlord’s initial position, that it was not required to consider any options other than that the tenancy had been terminated, was unreasonable and caused unnecessary stress and difficulty for the tenants for which a modest award of compensation is appropriate. Breach of right to quiet enjoyment
The tenants claim that their right to quiet enjoyment of the premises was breached when an inspection of the premises, including the taking of photographs in their bedrooms, happened without prior notice or their consent.
The relevant communications are as follows: • Ms Lu to Mr Chen on 9 February 2024, “Hi Rick, as you requested, I’ve attached the updated contract for 21 Banks Rd. Please reply to this e-mail that you have received it.” • Mr Chen to Ms Lu on 14 February 2024, “Hi Joyce so who is residing on the property at the moment? Megan Madison and Mandy?” • Ms Lu to Mr Chen on the same date, “Hi Rick, me, Megan and Maddy currently in this property, Madison is her legal name.” • Mr Chen to Ms Lu on 16 February 2024, “Hi Joyce when is your last date, can I book your time and Maddy and go through together? • Ms Lu to Mr Chen on 16 February 2024 , “Hi Rick I'm moving next Saturday. Maddy can do this Saturday and possibly Sunday morning” • Mr Chen to Ms Lu on 17 February 2024, “Hi Joyce is it possible next Tuesday or Friday? Because it won't Kimmi (my employee) to take over if possible, next Saturday is good.” • Ms Lu to Mr Chen 18 February 2024, “There is no other time that both me and Maddy can do in person. The only possible date is Tuesday next week with me doing in person and Maddy doing video call as Maddy's mum just out of the hospital and she will be in Tauranga.” • Mr Chen to Ms Lu on 18 February 2024, “Thank you for letting me know. We can do on Tuesday with you, let me know a time.” • Ms Lu to Mr Chen on 19 February2024, “4:00 PM would be good.” • Mr Chen to Ms Lu on 19 February 2024, “See you 4:00 PM tomorrow.”
Ms Lu’s evidence is clear that this exchange happened in the context of a discussion about Ms Coombes “taking over” the tenancy.
It is not disputed that while he was at the property on 20 February 2024 Mr Chen undertook an inspection of the whole of the property, including taking photographs in the tenants’ bedrooms. Mr Chen says he was given permission to do so by Ms Lu who was present. Miss Lu denies giving that permission.
Mr Chen says that he spoke with Ms Coombes who attended the meeting by video conference about the need to do a final inspection. Ms Coombes agrees that it weas mentioned but says that she then asked Mr Chen when that final inspection would take place but did not receive a reply.
Mr Chen’s presence at the premises on 20 February 2024 was not an unlawful entry. Clearly notice had been given and agreement reached, about his being there.
From the communications provided, I find it proved on balance that the agreed purpose of that visit was to discuss the arrangements for a possible ongoing tenancy for Ms Coombes and to introduce Mr Chen’s colleague Kimmy, (who in fact did not attend).
I find it proved on balance that no permission was given by the tenants at the time, for Mr Chen to conduct an inspection of the premises while he was there. That is corroborate by the tenants having immediately and strongly expressed their concern about the inspection having taken place.
If a landlord is to conduct an inspection of the premises, in the absence of specific consent from the tenants, the landlord is required to give 48 hours’ notice of the landlord’s intention to conduct an inspection. It is not sufficient for the landlord to be lawfully at the premises by notice or by consent for some other purpose and then, while there, conduct a full inspection without consent.
A possible inspection was not mentioned in any of the communications leading up to that meeting and I do not find that notice of an intended inspection had been given.
I accept that from Mr Chen’s point of view, because he had asked Ms Lu when she was vacating and because he considered that a final inspection was necessary, he may have thought it obvious that he would want to conduct a final inspection while he was at the premises.
I also accept Mr Chen’s evidence that when the tenants made it clear to him how upset they were with his visit and with his having taken photographs of their personal spaces, he destroyed those photographs and did not use them for the purpose of reporting to the owner.
Nevertheless, in my view, the tenants rightly feel that by an inspection of the premises having occurred without their notice or their consent, their right to privacy and quiet enjoyment of the premises was significantly breached. I find that breach warrants a moderate award of compensation.
The landlord has filed a cross claim. By the date of the hearing that claim was limited to a claim for $10.90 for replacement of a key. Their tenants do not dispute that claim.
Because the tenants have been substantially successful with their claim I reimburse the filing fee .

Tenancy Tribunal case 4879144 — Cleanliness at 21 Banks Road, Mount Wellington, Auckland 1060

At a glance

Tenancy Tribunal case 4879144 — Cleanliness at 21 Banks Road, Mount Wellington, Auckland 1060

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions