What was the outcome of Tenancy Tribunal case 4888060?

The tribunal order states: No application for suppression has been made.

How much money was awarded in case 4888060?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4888060?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4888060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11318477-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4888060?

The tribunal order states: No application for suppression has been made.

How much money was awarded in case 4888060?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4888060?

The primary dispute was Leaks. Related themes: Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4888060?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11318477-Tenancy_Tribunal_Order.pdf.

Unit/Flat Flat 5, 37 Harrison Street, Whanganui, Whanganui Tenancy Tribunal Case 4888060 — Leaks

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Reasons

Both parties attended the hearing, the tenant’s lawyers, Mr Cooper and Ms Monan appearing via audiovisual link from Auckland. The respondent landlord was represented by Mr Faulkner and Ms Fowler from Property Brokers.

These proceedings have a protracted history. On or about 15 May 2024 the tenant filed an application in the Tenancy Tribunal saying he: a. was given/handed an eviction notice which stated that the house was sub- standard (not healthy home compliant) and also the plumbing was not working properly, as well as leaking windows. He was given 90 days to move out and he did not comply with this notice. b. wanted $350,000 in compensation. c. wanted exemplary damages because the landlord had burgled his house. d. wanted fair treatment as a disabled person.

A case conference was called on 3 July 2024. As recorded in the minute for the case conference, the tenant, Mr Smith, was unable to attend because he was in hospital. Mr Cooper of Auckland Disability Law had applied for an adjournment of the conference because of Mr Smith’s incapacity. That adjournment was declined on the basis that Mr Cooper was Mr Smith’s representative, but as he pointed out that appointment has not actually been made. There was an application on file, but at that stage he was simply a contact person, assisting Mr Cooper.

In any event, it was important the conference proceeded in order to get some clarity of the claim.

At that conference, Mr Faulkner of Property Brokers advised that although a 90-day notice had been given to the tenant to vacate in order to undertake refurbishments, that was later revoked and so the landlord was unclear what the tenant’s claim was for.

The tenant had filed over 100 pages of documents but he had not specified what he wanted the Tribunal to order, apart from compensation of $350,000. He had not broken down his claim and linked it to any alleged breaches of the Residential Tenancies Act 1986.

The tenant was therefore advised in the minute of the case conference that: a. The Tribunal’s jurisdiction is limited to $100,000. The tenant might therefore either limit his claim to that amount or file a claim in the Court. b. The Tribunal has no jurisdiction to deal with any possible breaches of the Health and Disability Code of Consumer Rights. Those should be directed to the Health and Disability Commmissioner. c. If the tenant 1 was alleging discrimination, he should specify exactly how the landlord has discriminated against him.

It was accepted that at that time the tenant was very unwell, having been in hospital and Mr Cooper was unable to advise the Tribunal of when Mr Smith would be well enough to either instruct him or to prepare his case.

The tenant was directed to file a statement clarifying exactly what orders he is seeking and on what grounds up to a limit of $100,000 no later than 4 September 2024, and if he failed to do so, his application would be dismissed.

A statement dated 4 September 2024 was received on 4 or 5 September, although the landlord may not have received it until 6 September. Some allowance was made and directions were made for filing of documents.

The applicant sought: a. An order under s 78(1)(a) of the Act for a declaration that the Landlord has breached the Tenant’s quiet enjoyment of the premises without interruption by the landlord and/or that the Landlord caused or permitted interference(s) with the reasonable peace, comfort, or privacy of the Tenant in the use of the premises by the Tenant, arising out of s 38(1) and s 38(2) of the Act; b. An order under s 78(1)(a) of the Act for a declaration that the Landlord has failed to take all reasonable steps to ensure that none of the Landlord’s other tenants 1 The minute recorded “landlord” instead of “tenant”, which was clearly an error. have caused or permitted any interference with the reasonable peace, comfort, or privacy of the Tenant in the use of the premises, arising out of s 45(1)(e) of the Act; c. Orders under s 109(3) of the Act for the Landlord to pay exemplary damages to the Tenant arising from the commission of unlawful acts by the Landlord; d. An order under s 109A(1) of the Act to restrain the Landlord from committing further acts of the same kind as those acts which amount to unlawful acts under s 109 of the Act; e. An order under s 54(2) of the Act for a declaration that the notice provided by the Landlord on 5 July 2023 terminating the tenancy shall be of no effect; f. An order under s 109(3A) of the Act for the Landlord to pay exemplary damages to the Tenant arising from the declaration made under s 54(2) of the Act; g. Orders under s 77(2)(n) of the Act for the Landlord to pay compensation or damages to the Tenant in respect of breaches of the Act; h. An order under s 102(3) of the Act for costs; and i.An order under s 102(4) of the Act for the Landlord to pay the Tenant the filing fee paid for this application.

The applications fell under three heads: a. Ongoing pattern of entry without entitlement b. Ongoing Failure to Take Reasonable Steps to Address Interferences by Other Tenants c. Retaliatory Notice.

An adjournment was then granted to enable Mr Smith to instruct Mr Cooper and prepare documents. Further directions were made for filing of evidence by both parties and the hearing proceeded on 11 December 2024.

For the tenant, statements for the following people were filed: a. Alan Smith, the tenant. b. Brooke Smith, his daughter, whose evidence was that her father had suffered distress as a result of being given notice to terminate the tenancy and in her opinion had been treated poorly by the landlord. c. Peter Welsh, a friend of Mr Smith. d. Katherine Barclay. e. Bronwyn Martin.

The landlord served the tenant with statements from: 2 2 Although the Tribunal had not received this evidence before the hearing, copies had been sent to the tenant and hard copies were available. a. Mac McCallion b. Mike Adams c. Ewan Noble

Mr Adams gave evidence by phone. This was largely concerned with incidents in which he and the tenant have had disagreements. Mr Noble was phoned but did not give evidence.

Mr Cooper quite appropriately queried the relevance of the evidence of events that have taken place since the application was filed.

I allowed the evidence on the basis that its relevance may become clearer, and in the hope that there may be an opportunity for resolution, but in fact Mr Cooper was quite right, it was not relevant to the tenant’s claims. In fact, it had the potential to be prejudicial against him and needlessly prolonged the proceedings. In short, relations between Mr Smith and his neighbours are not harmonious and a number of them have complained about his behaviour. Those complaints are not relevant to the claims Mr Smith has made against the landlord, and have not been taken into account in determining them.

Mr Smith’s evidence also referred to matters alleged to have occurred since his application was filed in May 2024. Because his claims were clarified after receiving legal advice, I have considered only events that occurred before 4 September 2024, when his statement clarifying his claims was filed. Factual background

The tenancy agreement is between Mr Smith and the Wanganui RSA Welfare Trust and began on 9 September 2019.

Mr Smith has had part of his leg amputated and has provided photographs on more than one occasion to prove that. There is no dispute that Mr Smith has lost part of his leg. There is also no dispute that Mr Smith served in the Royal New Zealand Navy and he has a family history of service in the armed forces. Those matters are not relevant to the issues the Tribunal must determine.

Nor are the obligations of RSA pursuant to a Trust Deed. The Tribunal has jurisdiction over the rights and responsibilities of tenants and landlords. It is only in that capacity that the actions of the RSA and its agents concern the Tribunal.

Based on the evidence of Mr Smith and the other residents, there is no dispute that Mr Smith has a difficult relationship with his neighbours.

Mr Mac McCallion is a trustee of the Wanganui RSA Welfare trust and is the welfare support facilitator.

It was apparent from the way in which both Mr Smith and Mr McCallion gave their evidence that there was no love lost between them. It is not for the Tribunal to decide who is more at fault, but neither man displayed conciliatory communication skills or a wish to put matters to rest. Each believed strongly that he was right.

Property Brokers took over management of the premises and notified Mr Smith of this in a letter dated 27 June 2023. In an undated message from the RSA Chairman, the tenants were advised that the current state of the flats, built about 1980 had caused a high workload for the RSA volunteers and so RSA had decided to embark upon a programme of planned maintenance, which would require some substantial renovations of the flats and would only be able to be attempted one flat at a time.

On 5 July 2023 Property Brokers served the tenant with a 90-day notice to vacate, on the basis that they intended to complete extensive renovations on the property. He was required to vacate on 2 October 2023. On 3 October this was extended to 16 October 2023.

When the tenant did not vacate, an application was filed in the Tribunal for possession of the premises.

That application was later withdrawn, but not before the Tribunal made a determination of jurisdiction, the tenant having unsuccessfully argued that the premises fell under the Retirement Villages Act 2003 and were therefore excluded under section 5(1)(l) of the Residential Tenancies Act 1986 3 (the Act); alternatively that the premises constitute part of any hospital, home, or other institution for the care of sick, disabled, or aged persons under section 5(1)(d). The Tribunal also found that the parties had contracted into the Tribunal’s jurisdiction by entering into the tenancy agreement, paying the bond and transferring it to the Bond Centre.

The landlord withdrew the application for possession and also notified the tenant that they were no longer terminating the tenancy. Ongoing pattern of entry without entitlement/breach of quiet enjoyment

Mr Cooper submitted that throughout the tenancy, including within the 12 months prior to the filing of the application for the proceedings, the landlord had engaged in acts amounting to an ongoing pattern of behaviour of entering the Tenant’s premises in circumstances where there was no entitlement to enter under s 48 of the Act.

The tenant claims that: a. the landlord has interrupted his quiet enjoyment of the premises and caused and/or permitted interference with the reasonable peace, comfort, or privacy of the Tenant in using the premises. He sought compensation for this. b. through the landlord’s ongoing pattern of behaviour of entering the Tenant’s premises without a lawful basis, the landlord has committed unlawful acts as follows: i. As per s 48(4) of the Act, entry upon the premises other than as permitted by or under s48(1) to s 48(3) of the Act; and ii. As per s 38(3) of the Act, failure to comply with s 38(2) of the Act in circumstances which amount to harassment.

The tenant sought exemplary damages, saying acting intentionally at all times, the Landlord entered the premises at times with the intent to move or remove items of property belonging to the tenant. The landlord’s actions have significantly impacted the 3 4715369, 16 November 2023. tenant, particularly in terms of the stress and worry about his belongings but also his eroded sense of physical safety and security at home.

The examples of this were: a. Removal of bottles of water from Mr Smith’s back doorstep in June 2020. b. Mr Mac McCallion knocking on his door loudly without prior notice and saying he was going to repossess furniture and whiteware. c. Removal of a dining table that Mr Smith had placed on the roadside and asking for payment for that. d. Taking of photographs during a property inspection. e. An RSA van being parked on Mr Smith’s premises, directly outside his house, making his access difficult.

Mr Smith said that around 21-24 June 2020, he noticed a box of water bottles was missing, which had been placed on his back doorstep. The box was worth $78.20. He asked Mr Mac McCallion if he had seen his water bottle box which had just gone missing. His response that it was rubbish, and that he had thrown it away.

Mr Smith complained to the RSA President, Mr Hart, who told him that Mr McCallion is not a thief. Mr Smith then complained to the Police. He told the Tribunal that he laid a complaint of burglary. Evidence of a Police incident was provided. Mr Smith later withdrew his complaint following agreement with the RSA to replace the water bottle box.

When Mr McCallion gave evidence he was asked about this incident but did not recall it.

Mr Smith said that on an unspecified day between June 2020 and December 2021, Mr McCallion went to Mr Smith’s door unannounced, without any prior notice or warning and aggressively knocked on the door loudly. When Mr Smith answered the door, Mr McCallion said that he was going to repossess the furniture and whiteware. His demeanour and his voice were overly aggressive, painfully loud, and unnecessarily direct and harsh. Mr Smith said that he was shocked by his aggressive demeanour and told him so. Mr Smith told him to leave, which he reluctantly did. While leaving, he threatened Mr McCallion by saying that he was not going to get my bond back.

Mr McCallion explained that a preceding tenant had left some items which Mr Smith was allowed to purchase from the RSA. Because he had not paid for them, the RSA were going to take possession of them.

On 19 January 2022 when Mr Smith was in hospital, he was informed that Mr McCallion had approached hospital staff, directing them to provide him with information about his medical condition.

While in hospital Mr Smith’s friend, visited and told him that Mr McCallion had told her that he was going to enter Mr Smith’s home and move his water bottles, trolley and vacuum cleaner. When Mr Smith came home, he noticed somebody had been in, moving his water bottles and other items. An ice-cream container filled with $1 and $2 coins was missing. Mr Smith conclude that Mr McCallion was responsible for this.

Ms Bronwyn Martin is a friend of Mr Smith’s. She gave evidence that while Mr Smith was in hospital, he had asked her to do some gardening for him. She said that while she and her husband were weeding the garden, a gentleman from the RSA, who looks after the units, approached them to say hello. They discussed some yucca plants that Ms Martin thought needed removing and a shrub that had seeded itself. He said he would remove them himself.

Ms Martin said that the gentleman noticed some items belonging to Mr Smith at the front door: some bottles Mr Smith keeps there, and a vacuum cleaner. The gentleman said he could put them inside the unit as he had a key. Ms Martin advised him that it probably would not be a good idea, as Mr Smith would not like that, and he would be home in a day or so anyway.

Ms Martin visited Mr Smith at home several days later. The yucca plants had been removed, and the items at his front door were inside the unit when he arrived home. Mr Smith was not happy that someone had put them inside. They concluded that the gentleman from the RSA had in fact removed the plants as discussed and had put the items inside.

Mr McCallion’s evidence was that he has keys in his office in the event of an emergency. While Mr Smith was in hospital, it was noticed that there was a lot of stuff outside, including a vacuum cleaner. Mr McCallion put the things inside for Mr Smith. He expected Mr Smith to be grateful.

In February or March 2022 Mr Smith advertised on Facebook to give some furniture away. He arranged for someone to collect his dining table from the roadside.

Around 7 March the RSA wrote to Mr Smith requiring payment of $45.00 for removal of the table. This removal had been done without speaking to him. By trying to charge him for this, Mr Smith felt that the RSA was effectively punishing him for its own interference with his quiet enjoyment.

On 12 March 2024, during a property inspection, Sara Hills from Property Brokers took photos. Mr Smith did not feel comfortable with this. When Ms Hills arrived, she walked inside right away, with her phone in hand. A friend, Kathy Barclay, was there at the time. Ms Hills did not introduce herself to Ms Barclay. Ms Barclay told Ms Hills that Mr Smith did not want photos taken inside his home.

Ms Hills said it was a requirement from the RSA and they had given notice of their intention to take photos. Ms Barclay told Sara that Mr Smith struggled to read and write. Ms Hills still ignored the request and started to take photos. Ms Barclay said to Ms Hills that she would photograph Ms Hills taking photos.

Mr Smith said that Ms Hills immediately lost her temper and stormed out of the unit, saying “Fuck you two”.

Ms Katherine Barclay also gave evidence. She said that she was present at the property inspection on 12 March 2024. She confirmed that there was a disagreement as Mr Smith was uncomfortable about photographs being taken in his home. Ms Barclay said that Ms Hills disregarded Mr Smith’s wishes until Ms Barclay insisted. According to Ms Barclay, Ms Hills stormed out saying something like, “for fuck’s sake!”.

At the start of the landlord’s evidence, Mr Faulkner advised he intended to have Ms Hills to give evidence by phone. The allegations which concerned her were within the evidence filed by the tenant. No statement from Ms Hills had been filed or served at any point. No application or notification had been filed with the Tribunal for Ms Hills to give her evidence by phone. Mr Faulkner told the Tribunal that Ms Hills denied Mr Smith’s allegations. This had not been put to either witness in cross-examination.

Mr Cooper objected to Ms Hills giving evidence.

In a Tribunal such as this, where the parties are not usually represented, some lenience is allowed for deviating from correct evidential procedure. However, directions had been made for the filing of witness statements. If the landlord had filed a statement from Ms Hills in which she denied the allegations made by Mr Smith and Ms Barclay, then no doubt Mr Cooper would have explored this with his witnesses, and if not, I would have ensured that this denial was put to Mr Smith and Ms Barclay to comment on. As explained at the hearing, in the absence of any statement from Ms Hills, it was assumed that this was not disputed.

Given that clear directions had been made for the filing of evidence, and the introduction of the proposed evidence would require previous witnesses to be recalled, I did not allow the late evidence of Ms Hills.

The final example of the landlord’s entry without entitlement and breach of Mr Smith’s quiet enjoyment was the RSA van that was outside his flat between July and August 2024. Mr Smith provided photographs showing a van, which he said was on his premises. He said that made it difficult to access his property at times. He had not raised this with the landlord. Discussion

The tenant claims the landlord has entered the premises without consent or notice.

Section 48 sets out the circumstances in which a landlord may enter the premises of a tenant. A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

Section 48(7) says that for the purposes of that section, “premises” does not include land or facilities. Therefore, a landlord may enter the grounds of a property without obtaining consent or giving notice under section 48.

There is no evidence that anyone entered the premises when the water bottles were removed. Accordingly, there has been no breach of section 48.

For the same reasons, removal of a table that had been placed on the road does not amount to a breach of section 48. Mr Smith was asked to pay $45.00 for its removal but there is no evidence that he did so. There is no loss to Mr Smith arising from the removal of the table.

Entry of the premises to put Mr Smith’s belongings away while he was in hospital was technically a breach of section 48. However, it was done in an attempt to assist Mr Smith. Mr Smith has insinuated that the landlord is responsible for the loss of an unspecified sum of money that was in an ice cream container. There was no mention of this issue in the letter that Mr Smith wrote to the RSA in June 2022 when he said that his water box, vacuum cleaner and walker had been moved inside. This matter was not put to Mr McCallion in cross-examination. The tenant has not established on the balance of probabilities that Mr McCallion took any money.

As for taking photos at the property inspection, Ms Hills was at the premises to undertake an inspection. Proper notice had been given. It is standard practice to take photographs of tenancies at inspections and necessary to provide evidence of any breaches of rights or responsibilities by either party. Notice that she was going to take photos had also been given in a letter dated 1 March 2024, and so if Mr Smith objected to this, it would have been sensible to notify the property manager of this beforehand. When Mr Smith objected to the taking of photographs on the day, it might have been prudent for Ms Hills to withdraw, obtain further advice and come back another day. Ms Hills did eventually leave.

Parking a van outside Mr Smith’s flat does not amount to entering the premises under section 48.

In summary, there is one instance of the landlord’s agent entering the premises without consent in January 2022 to put some bottles and a vacuum cleaner inside. It was not an emergency and no notice had been given. That is 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.

Section 109(2)(b) requires any claim for exemplary damages to be filed no later that 12 months after the commission of the unlawful act. The claim for exemplary damages was filed more than 2 years after the incident and is therefore out of time. In any event, taking into account the intent of the landlord, which was to do the tenant a favour and prevent damage or theft, it is unlikely that an order for exemplary damages would have been made. Breach of quiet enjoyment

The next question is whether, through a series of events, Mr Smith’s rights have been breached under section 38.

Under section 38(2), a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.

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.

Removal of the water bottles from outside the property by the landlord may amount to interference with Mr Smith’s reasonable peace, comfort and privacy. He has been reimbursed the cost of these. On its own this does not amount to harassment.

Removal of a table that Mr Smith had left on the street does not amount to a breach of Mr Smith’s rights under the Residential Tenancies Act. He had left the table for someone else to collect. He was giving it away for free. It was only when the RSA asked him for payment that he was aware that they had moved it.

Mr McCallion, as an agent for the landlord, visited Mr Smith regarding payment or repossession of some chattels. That does not amount to a breach of quiet enjoyment. It is not relevant that he knocked loudly. The two men had an argument, but it does not follow that Mr Smith’s rights have been breached.

Having received the evidence of Mr Smith and Ms Barclay regarding the property inspection, I find it more likely than not that as she left, Ms Hills swore. I consider it very unlikely that she swore at Mr Smith and Ms Barclay as Mr Smith described it. Ms Barclay’s evidence that Ms Hills said “For fuck’s sake” or words to that effect is entirely plausible.

Ms Hill’s frustration with Mr Smith was unprofessional but it does not amount to an interference with Mr Smith’s peace, comfort or privacy.

Mr Smith has been inconvenienced by the parking of a van outside his property. However, he has not brought this to the attention of the landlord and so he has not made any attempt to mitigate that inconvenience.

I do not find that the three incidents in 2022 (entry without consent, removal of water bottles and removal of table) were in any way related. It is unclear why the water bottles were removed, but the moving of a table from the road is understandable. There is no evidence that Mr Smith paid for the moving. The parking of the van would also be inconvenient, and Mr Smith could have brought that to the attention of the landlord. ach These matters as well as Ms Hill’s conduct in 2024 were each unfortunate acts that do not warrant compensation. The Tribunal is not required to order compensation for each insult, slight or error.

Nor do I find that the five unrelated incidents over the period 2022 to 2024 (including Mr McCallion threatening to repossess items) amount to harassment. Although Mr Smith is upset, the conduct did not indicate a particular pattern of behaviour directed towards Mr Smith. The tenant has not established there was an intention to trouble, worry, distress, wear out, tire or exhaust him. I do not find that the landlord committed an unlawful act. The tenant’s claims for compensation and exemplary damages are dismissed. Ongoing Failure to Take Reasonable Steps to Address Interferences by Other Tenants

In a letter dated 27 April 2022 to the RSA, Mr Smith requested a meeting. He said that his neighbour had threatened and abused him, calling him a retard.

In a letter dated 11 June 2022, Mr Smith wrote again about the water box, the table and the moving of his water bottles, vacuum cleaner and trolley/walker inside while he was in hospital in January 2022.

On 3 October 2022 the Chairman of RSA wrote to all tenants saying that complaints had been received about verbal abuse, threats, foul language and denigrating comments, reminding them all to act in a courteous manner. It concluded: If tenants are not conducting themselves appropriately, then I wish to hear about it in the form of a written complaint as soon after the action as possible. At that point I will investigate to ascertain the validity of the complaint and will take appropriate action as necessary. Please endeavour to conduct yourself in the same manner as which you would like to be treated, and we might on have any further instances of poor behaviour.

On 15 October 2024 Mr Smith complained to Property Brokers about an incident on 11 October when his neighbour allegedly swore at him. This occurred after the application was filed.

On 25 October 2024 (after the application had been filed) Property Brokers emailed Mr Smith. The email included the following, “Thank you for reaching out regarding the incidents involving your neighbour...we want to assure you that we take your concerns seriously.” They said that they would reach out to the neighbour to discuss the situation. They recommended documenting all incidents.

Under section 40, a tenant must not cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.

Based on the evidence before the Tribunal, the tenant has difficult relationships with some of his neighbours. The fact that the tenants do not all get on and have had some disputes does not necessarily amount to interference with reasonable peace, comfort or privacy. It is not the role of the landlord to intervene and adjudicate every dispute. The landlord has written to all the tenants reminding them to treat each other with courtesy and respect. It is desirable that they all live in harmony. Failure to do so does not automatically mean that there has been a breach of a right under the Residential Tenancies Act or that the landlord is responsible.

This claim is dismissed. Retaliatory notice

The tenant claims that the notice given on 5 July 2023 was retaliatory.

Section 54 reads as follows: 54Tribunal may declare notice retaliatory (1) This section applies in relation to a notice given by a landlord terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U). (2) The tenant may apply to the Tribunal for an order declaring that the notice was retaliatory on either or both of the following grounds: (a) that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy: (b) that, in giving the notice, the landlord was motivated wholly or partly by the exercise or performance, or proposed exercise or performance, by the chief executive or any other person of any power or function conferred on the person under this or any other Act in respect of the tenancy or premises. (3) If the tenant makes the application within 28 working days after receiving the termination notice, the tenant may at the same time apply for an order declaring the notice to be of no effect. (4) If the Tribunal is satisfied that either or both of the grounds in subsection (2) apply, the Tribunal must declare the notice to be retaliatory and, if an order is applied for under subsection (3), of no effect. (5) However, the Tribunal need not declare the notice to be retaliatory and of no effect if the Tribunal is satisfied that, in the case of subsection (2)(a), the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (6) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (4) to be retaliatory.

In summary, for a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1).

The application is out of time for a declaration under subsection (3) that the notice is of no effect, but in any event the notice has been withdrawn.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A.

Unlawful acts are covered under section 109 of the Act which provides that a party may not apply for exemplary damages later than 12 months after the date of commission of the unlawful act. See section 109(2).

The notice to terminate was given on 5 July 2023. Although the tenant filed an application in May 2024, there was no reference to an application for retaliatory notice or exemplary damages.

Mr Smith’s application filed in May referred to the notice that had been given to him in the section in the application form concerning Healthy Homes where he said: I was given/handed an eviction notice which stated that the house was sub-standard (not healthy home compliant) and also the plumbing was not working properly, as well as leaking windows. I was given 90 days to move out. I did not comply with this notice.

For that, Mr Smith claimed $350,000 in compensatory damages.

The claim for exemplary damages for retaliatory notice was included in the clarification of claim filed on 4 September 2024.

Mr Smith must prove that the notice was given as a result of his attempt to assert a right under the Residential Tenancies Act. Examples of this might be where a tenant has asked for some repairs to be done, or has refused entry because inadequate notice was given.

The onus is on Mr Smith to prove that in purporting to terminate the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.

Mr Smith’s evidence was that prior to the notice to terminate his tenancy, he had raised several concerns with the RSA and Property Brokers, many to do with his disabilities. He said he had also needed to get help from the Tenancy Tribunal or the Police on concerns throughout my tenancy. For example, on 27 February 2023, a legal dispute needed to be resolved by way of an order from a Tenancy Mediator.

As noted above, in a letter dated 27 April 2022, Mr Smith requested a meeting. He said that his neighbour had threatened and abused him, calling him a retard.

In a letter dated 11 June 2022, Mr Smith wrote again about the water box, the table and the moving of his water bottles, vacuum cleaner and trolley/walker inside while hi was in hospital in January 2022.

On 27 February 2023 at a mediation, it was agreed that RSA would pay Mr Smith $2,206.85 for installation of a heat pump.

I do not accept Mr Cooper’s submission that the landlord’s decision to withdraw the notice was evidence that they knew the notice was retaliatory. There is no dispute that the landlord was renovating one property at a time. Mr Mike Adams gave evidence that he had been renovating Unit 1 before moving in. In the face of opposition from Mr Smith to the notice, it was a pragmatic decision to withdraw the notice and move to a different flat.

In the context of: a. the landlord’s letter advising tenants that renovations were going to be undertaken on all flats in a piecemeal fashion, b. evidence during the hearing that some flats had been renovated, and c. no evidence of Mr Smith exercising a right or making a complaint within 5 or 6 months before the notice was given, the tenant has not established that the notice was retaliatory.

Mr Cooper raised a last-minute argument under section 60AA that the landlord had purported to give notice to terminate when they knew that they were not entitled to do so. Clear directions had been given for Mr Smith to clarify the orders he was seeking, no later than 4 September 2024. Mr Cooper submitted that the Tribunal could consider the application on the basis of section 85 which provides: 85 Manner in which jurisdiction to be exercised (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

As noted above, there are a number of ways in which the Tribunal does not insist on the formalities and procedures of a court. On a daily basis the Tribunal hears a mixture of evidence and submission, the weaving of the evidence of the parties without cross- examination and production of documents without the use of a relevant witness. No matter what, the rules of natural justice must be observed.

Where an application is extensive, directions have been given for filing of documents, and the party seeking to include an additional ground outside that timetable is represented by counsel, it is not fair to the other party to entertain it.

Even if that were not the case, the ground fails. There is no dispute that the landlord is in the process of renovating units. The notice was given on the basis that the tenant’s unit was to be renovated. The landlord changed their mind and withdrew the notice. The tenant has not established that the landlord gave notice, knowing they were not entitled to do so.

It is understandable that Mr Smith suffered distress at receiving the notice, but it does not follow that the landlord acted contrary to the law set out in the Act. Conclusion

Mr Smith feels he is being treated unfairly. Not every dispute between neighbours in a residential complex or between tenant and landlord amounts to a breach of a right or responsibility under the Residential Tenancies Act, and not every breach of the Act requires compensation or exemplary damages. Mr Faulkner was open to seeing if some agreement could be reached to ensure that the parties can live harmoniously. Such an approach is to be encouraged.