What was the outcome of Tenancy Tribunal case 4889663?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4889663?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4889663?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4889663?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10791396-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4889663?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4889663?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4889663?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4889663?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10791396-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 110 Pinehaven Road, Pinehaven, Upper Hutt Tenancy Tribunal Case 4889663 — Exemplary damages

Order

The tenant’s application is dismissed.

Reasons

Did the landlord breach its obligations under section 48 of the Residential

Tenancies Act 1986?

Sarah-Jane O'Connor claims that the landlord’s agent entered the premises without sufficient notice to her.
The background is that the owner decided to sell the property. As part of the sale process, photos were to be taken for advertising. The photographer contacted Sarah-Jane. There is no dispute that the parties talked about the photographs being taken during the following week and that Sarah-Jane told the photographer that she would be working from home on the Monday and Friday and would not be at the property Tuesday through Thursday. She also told the photographer that she didn’t need to be at the property when the photos were taken. When she returned from work on the following Tuesday she was unsettled by signs that there had been an entry to the house. She was anxious that it could have been a stranger. It was the photographer that had arrived at noon to take photos. No photos were taken because of the condition of the property. Sarah-Jane believed that the photographer should have given a specific time to her and that the entry to the property was therefore unlawful.
A landlord may not enter the premises during the tenancy except with the tenant's consent, or after giving the required notice. Section 48(3)(d) is the most relevant part of section 48 to apply to this case. It provides that landlord requires the prior consent of the tenant and may enter the premises at any reasonable time for the purpose of showing the premises to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premise.
I am satisfied that Sarah-Jane gave consent, and the premises were entered at a reasonable time (Noon) between Monday and Friday of the week that was agreed. In her conversation with the photographer, she stated that any day of the following week would be acceptable but did not mention that she would need to know the day of the week that photographs would be taken.
Sarah-Jane believes the photographer’s entry to the premises was unlawful. because she was not told the day of entry. However I am satisfied that Sarah- Jane gave consent to enter Monday to Friday and omitted to add that she wanted to know which day had been chosen. I am not satisfied that an unlawful act has been committed.
I should add that if I had decided that an unlawful act had been committed, an order for exemplary damages may not follow. For exemplary damages to be awarded, a party must have committed an unlawful act intentionally. In this case the entry for photographs came about by general consent but a misunderstanding about Sarah-Jane’s need for more specific information. It would be difficult to conclude that the entry by the photographer was an intention to commit an unlawful act. Was the landlord’s termination notice retaliatory?
Sarah-Jane has claimed that the landlord’s 90 day notice on 16 May 2024 was retaliatory.
On 20 March 2024 the landlord advised Sarah-Jane that the owner intended to sell the property. On 25 March the owner and real-estate agent visited the property following Sarah-Jane giving consent the day before. About a month later, on 28 April the owner contacted Sarah-Jane to say a photographer would be in touch regarding photographs of the property. On 6 May the photographer advised the owner that he had been in touch with Sarah-Jane and photos would taken on Tuesday, 7th. On 7 May Sarah-Jane informed the landlord about being upset that she was not informed that the photographer was to be at the premises on Tuesday. Sarah-Jane stated to the landlord that she would give limited access to the real estate agents as they tried to sell the property. The owner said that she consulted Tenancy Services who advised that a termination notice on the grounds of selling the property would not be retaliatory. On 16 May the 90 day notice to terminate was given to Sarah-Jane. Sarah-Jane countered on 17 May with a 28 day notice to terminate the tenancy.
Sarah-Jane is not requesting the Tribunal to declare the landlord’s notice to be of no effect. She is requesting exemplary damages for an unlawful act.
I have considered the evidence and do not find that an unlawful act was committed by the landlord when giving the 90 day notice. I am satisfied that the notice to terminate could have been given at any time after 20 March 2024 when the landlord informed Sarah-Jane of the intention to sell. The appointment of selling agents and the activity of photographing the premises shows that the landlord’s notice was motivated by the need to sell and not from any right the Sarah-Jane may have chosen to exercise. Sarah-Jane’s email stating that she would limit future access was unfortunate. It signalled that there would potentially be ongoing conflict regarding access issues. It was reasonable for the landlord to put in place some finality to the tenancy to limit future conflict.
For the reasons given above the application is dismissed. This is the merits and justice of the case.

Order

The tenant’s application is dismissed.

Reasons

Did the landlord breach its obligations under section 48 of the Residential

Tenancies Act 1986?

Sarah-Jane O'Connor claims that the landlord’s agent entered the premises without sufficient notice to her.
The background is that the owner decided to sell the property. As part of the sale process, photos were to be taken for advertising. The photographer contacted Sarah-Jane. There is no dispute that the parties talked about the photographs being taken during the following week and that Sarah-Jane told the photographer that she would be working from home on the Monday and Friday and would not be at the property Tuesday through Thursday. She also told the photographer that she didn’t need to be at the property when the photos were taken. When she returned from work on the following Tuesday she was unsettled by signs that there had been an entry to the house. She was anxious that it could have been a stranger. It was the photographer that had arrived at noon to take photos. No photos were taken because of the condition of the property. Sarah-Jane believed that the photographer should have given a specific time to her and that the entry to the property was therefore unlawful.
A landlord may not enter the premises during the tenancy except with the tenant's consent, or after giving the required notice. Section 48(3)(d) is the most relevant part of section 48 to apply to this case. It provides that landlord requires the prior consent of the tenant and may enter the premises at any reasonable time for the purpose of showing the premises to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premise.
I am satisfied that Sarah-Jane gave consent, and the premises were entered at a reasonable time (Noon) between Monday and Friday of the week that was agreed. In her conversation with the photographer, she stated that any day of the following week would be acceptable but did not mention that she would need to know the day of the week that photographs would be taken.
Sarah-Jane believes the photographer’s entry to the premises was unlawful. because she was not told the day of entry. However I am satisfied that Sarah- Jane gave consent to enter Monday to Friday and omitted to add that she wanted to know which day had been chosen. I am not satisfied that an unlawful act has been committed.
I should add that if I had decided that an unlawful act had been committed, an order for exemplary damages may not follow. For exemplary damages to be awarded, a party must have committed an unlawful act intentionally. In this case the entry for photographs came about by general consent but a misunderstanding about Sarah-Jane’s need for more specific information. It would be difficult to conclude that the entry by the photographer was an intention to commit an unlawful act. Was the landlord’s termination notice retaliatory?
Sarah-Jane has claimed that the landlord’s 90 day notice on 16 May 2024 was retaliatory.
On 20 March 2024 the landlord advised Sarah-Jane that the owner intended to sell the property. On 25 March the owner and real-estate agent visited the property following Sarah-Jane giving consent the day before. About a month later, on 28 April the owner contacted Sarah-Jane to say a photographer would be in touch regarding photographs of the property. On 6 May the photographer advised the owner that he had been in touch with Sarah-Jane and photos would taken on Tuesday, 7th. On 7 May Sarah-Jane informed the landlord about being upset that she was not informed that the photographer was to be at the premises on Tuesday. Sarah-Jane stated to the landlord that she would give limited access to the real estate agents as they tried to sell the property. The owner said that she consulted Tenancy Services who advised that a termination notice on the grounds of selling the property would not be retaliatory. On 16 May the 90 day notice to terminate was given to Sarah-Jane. Sarah-Jane countered on 17 May with a 28 day notice to terminate the tenancy.
Sarah-Jane is not requesting the Tribunal to declare the landlord’s notice to be of no effect. She is requesting exemplary damages for an unlawful act.
I have considered the evidence and do not find that an unlawful act was committed by the landlord when giving the 90 day notice. I am satisfied that the notice to terminate could have been given at any time after 20 March 2024 when the landlord informed Sarah-Jane of the intention to sell. The appointment of selling agents and the activity of photographing the premises shows that the landlord’s notice was motivated by the need to sell and not from any right the Sarah-Jane may have chosen to exercise. Sarah-Jane’s email stating that she would limit future access was unfortunate. It signalled that there would potentially be ongoing conflict regarding access issues. It was reasonable for the landlord to put in place some finality to the tenancy to limit future conflict.
For the reasons given above the application is dismissed. This is the merits and justice of the case.

Tenancy Tribunal case 4889663 — Exemplary damages at Unit/Flat 2, 110 Pinehaven Road, Pinehaven, Upper Hutt

At a glance

Tenancy Tribunal case 4889663 — Exemplary damages at Unit/Flat 2, 110 Pinehaven Road, Pinehaven, Upper Hutt

At a glance

Claims & awards

Order

Reasons

Tenancies Act 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Tenancies Act 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions