What was the outcome of Tenancy Tribunal case 4967913?

The tribunal order states: Quality Rental Management Limited must pay Emma Louise Hood and Jeffrey

How much money was awarded in case 4967913?

Property Damage: $1,200.00 awarded to tenant

What type of tenancy dispute was case 4967913?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4967913?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10862128-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4967913?

The tribunal order states: Quality Rental Management Limited must pay Emma Louise Hood and Jeffrey

How much money was awarded in case 4967913?

Property Damage: $1,200.00 awarded to tenant

What type of tenancy dispute was case 4967913?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4967913?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10862128-Tenancy_Tribunal_Order.pdf.

15 Matipo Crescent, Pukete, Hamilton 3200 Tenancy Tribunal Case 4967913 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4967913 — net $1,200.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$1,200.00	Exemplary damages
Net award	$1,200.00
Total payable by Landlord to Tenant	$1,200.00

Claims and awards in Tenancy Tribunal application 4967913 — net $1,200.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$1,200.00	Exemplary damages
Net award	$1,200.00
Total payable by Landlord to Tenant	$1,200.00

Order

Quality Rental Management Limited must pay Emma Louise Hood and Jeffrey Rogerson $1,200.00 immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing on 23 September 2024.
The tenancy commenced in or about 2014.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenants must establish that what they are claiming is more likely than not.
The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not, is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The burden or “job” of providing sufficient evidence is solely on the party bringing the claim to the Tribunal. There will be cases where that party does not bring adequate evidence and the case is dismissed. That does not mean that that party is wrong or not telling the truth. It simply means that the evidence presented was insufficient to prove that what that party alleges was more likely than not.
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted documentary evidence including emails and photos. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered. With respect to the parties, I found the tenant’s presentation of evidence at the hearing to be disjointed. I have done my best to try to work through the evidence, despite the confused manner in which it was presented.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner. The tenant expressed strong feelings of disappointment and stress with how things evolved during the course of the tenancy.
The tenants’ claims are; o Failure to maintain. o Breach of the tenants’ quiet enjoyment. o Retaliatory notice. o The tenants applied for exemplary damages where applicable. Failure to maintain
The tenants’ claim that the landlord has breached their obligations under section 45 RTA. Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligations 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 RTA.
The tenants’ evidence related to the carport at the premises.
The tenant says that a number of complaints have been made to the landlord during the course of the tenancy. First complaint.
The tenant said that she first raised concerns about the carport and in particular the clearlite roof of the carport, with the landlord in 2017. She said that the clearlite had become brittle over time. The clearlite had holes in it and was generally deteriorating. When there was a strong wind, the clearlite would lift from the structure of the carport.
The landlord said that the first that they became aware of the issue was in 2022 when the tenants sent an email to the landlord on 7 April 2022 complaining about the clearlite.
The tenants suggested that as the premises were managed by a range of property managers over the years, that could be the reason for the landlord not having details of her first complaint. She said that there appeared to be little continuity between information given to one property manager and their replacement in that role. Second compliant
A second compliant was made by the tenants about the clearlite in an email to the landlord dated 7 April 2022.
The evidence of the landlord was that they discussed the complaint with the owner and were instructed to have repairs completed. The landlord said that the repairs were carried out on 9 July 2022. Third complaint
The tenant did not consider that the repairs on 9 July 2022 had been carried out to a workmanlike standard and issued a 14 day notice to the landlord requiring the carport to be repaired.
The landlord evidence was that the repair work to the carport, which included adding a brace to the structure, was completed on 22 October 2022. Fourth Complaint
At an inspection in May 2024, the issue of the clearlite was raised again by the tenant. A quote for the repairs was obtained by the landlord and a contractor attended the premises on 18 July 2024. Having viewed the carport, the advice from the contractor to the owner was that more than just replacement of the clearlite was required. The owner considered that advice and decided to remove the carport completely. That work would be carried out at the same time as extensive renovations were to be carried out to the main house.
On or about 22 July 2024, a second 14 day notice to repair the clearlite was sent to the landlord by the tenant.
On 23 July 2024, the landlord made contact with the tenant to let them know that a contractor would come and install new clearlite, so as to comply with the notice received.
On 5 August 2024, the landlord sent a notice to the tenants to let them know that maintenance contractors would call. The tenants responded by saying that the notice period provided did not comply with the notice requirements of the RTA and that the carport was now in use by the tenants, the tenant having moved a van into the carport so that work could be carried out on the van.
By this time, the landlord had issued a 90 day notice to terminate the tenancy as a result of the premises requiring extensive renovations. It is fair to say that relations between the tenant and landlord deteriorated even further from this point.
A great deal of time has passed since the tenant first complained about the garage. Attempts have been made to effect repairs. Given that the advice of the most recent contractor has been to remove the carport completely, the tenant’s grievance that previous repairs have not been effective does seem to carry some weight.
A landlord is to be given a reasonable time to conduct repairs once notice of the need to repair is given by the tenant. In the circumstances of this case, I do not consider that appropriate and workmanlike repairs have been carried out by the landlord within a reasonable time frame. I consider that the landlord’s failure over time amounts to 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) RTA.
The facts disclose that the breach has occurred over a prolonged period of time. That would indicate that there has been some intention of the landlord’s part. The delay in repairing the carport has been exacerbated by the number of property managers involved with the premises over the term of the tenancy. The failure to carry out the repairs in a workmanlike manner has caused frustration for the tenant and has meant that they have had a reduced use of the carport.
It is in the best interests of these tenants and tenants generally to have landlord’s comply with their obligation to maintain premises.
Taking the factors referred to above into account, and in particular the period of time over which complaints have been made I consider that an award of exemplary damages of $1,200.00 to be appropriate. Quiet Enjoyment Has the landlord breached the tenants’ right to quiet enjoyment of the tenancy?
A tenant is entitled to have quiet enjoyment of the premises without interruption by the landlord or by any person claiming through the landlord. See section 38(1) RTA. A landlord must also not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2)RTA.
Section 38(1) RTA is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s.38(2) RTA states that the landlord must not cause any interference, the duty is modified by the degree of interference to the “reasonable peace, comfort or privacy” of the tenant.
It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to carry out maintenance or renovations) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to carry out maintenance, but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.
Whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the work being carried out, and the length and degree of intrusion.
Similarly, the landlord’s right to inspect the property is of its very nature an intrusion on the tenant’s right to quiet enjoyment, but the tenant must allow inspections. It becomes a question of fact and degree in each case as to whether the manner of the inspection becomes an unreasonable interference.
The Tribunal has also taken the view in the past that a personality clash or a difference of opinion does not of itself amount to a breach of quiet enjoyment. Whilst it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach.
For a breach of either section 38(1) or 38(2) RTA, the usual procedure would be for the tenant to first ask the landlord to stop the offending activity and, if the landlord fails to do so, apply to the Tenancy Tribunal for an appropriate order.
Finally, section 48 RTA is relevant in this case and sets out the specific notice a landlord is required to give a tenant in order to enter the premises in different situations unless the tenant consents. Importantly, the reference to “premises” in section 48 RTA does not include land. Therefore, the notice provisions in section 48 do not apply when the landlord is simply entering the land. However, even when entering the premises including the land legitimately, a landlord must still be careful not to breach the covenants for quiet enjoyment contained in sections 38(1) and (2) RTA.
The tenants say that in Augst 2024 they were told by the landlord that contractors would be in touch as the landlord was obtaining quotes for carpet installation and interior painting. The tenant said that only Nate from the carpet installer made contact to try to arrange a suitable time. Nate was told that no one would be home during the day and that it would not be suitable for the tenant for a number of weeks.
By this point of the tenancy, relations between the tenant and the landlord had essentially broken down. At the heart of this was a decision by the landlord to give the tenants, 90 days’ notice pursuant to s.51(2)(f) RTA ( the landlord having decided intending to conduct extensive renovations to the premises). The tenant was upset that the landlord made no attempt to provide them with alternative accommodation. Whilst the RTA requires a landlord to provide a tenant with 90 days’ notice of their intention to terminate the tenancy to carry out extensive renovations, there is no obligation on a landlord under the RTA to provide alternative accommodation.
In the circumstances as explained by the tenant, I do not consider that the tenant has proven that it is more likely than not that there has been a breach of their quiet enjoyment and the application is dismissed. There is no reference in the evidence to there being a constant stream of contractors coming and going from the premises. Retaliatory Notice
On 22 July 2024, the landlord gave the tenant a notice ending the tenancy. The tenant claims the notice is retaliatory.
Section 54 of the Residential Tenancies Act 1986 provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised 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.
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 s 54(2), (3) and Schedule 1A RTA).
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 s 109(3) RTA).
There are four issues for the Tribunal to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
The notice complies with s.51 RTA.
The tenant application to the Tribunal was made within 28 days of the notice being served.
The Tribunal has held that the term “motivate” has the ordinary dictionary meaning “to give impetus to ... to impel.” Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a brief period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights.
In this case, the tenant has given a 14 day notice to the landlord after being advised that the landlord proposed terminating the tenancy. It cannot have been given by the landlord in response to the notice from the tenant and so the application must fail as the tenant has failed to prove to the required standard that the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord. The application is dismissed.

Tenancy Tribunal case 4967913 — Exemplary damages at 15 Matipo Crescent, Pukete, Hamilton 3200

At a glance

Tenancy Tribunal case 4967913 — Exemplary damages at 15 Matipo Crescent, Pukete, Hamilton 3200

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