What was the outcome of Tenancy Tribunal case 5019428?

The tribunal order states: One claim of unlawful entry is proved. The other is dismissed.

How much money was awarded in case 5019428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019428?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5019428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11867445-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5019428?

The tribunal order states: One claim of unlawful entry is proved. The other is dismissed.

How much money was awarded in case 5019428?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019428?

The primary dispute was Harassment. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5019428?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11867445-Tenancy_Tribunal_Order.pdf.

5 Tuatua Road, Hobsonville, Auckland 0616 Tenancy Tribunal Case 5019428 — Harassment

Order

One claim of unlawful entry is proved. The other is dismissed.
One claim of breach of quiet enjoyment is proved. The other is dismissed.
No award for exemplary damages is made.

Reasons

Both parties attended the hearing. Kathryn Gray represented herself and Mr Queye-mary Boudier as the tenants.
The landlord was represented by Mr Durakovic of Barfoot and Thompson. Because all of the complaints involved the actions of Ms Susanne Novy, Ms Novy spoke on her own behalf throughout the hearing in response to the claims.
The tenants have raised two claims each of unlawful entry and breach of quiet enjoyment during the tenancy. They seek a remedy of exemplary damages for each.
The tenancy began as a one-year fixed-term tenancy on 14 October 2023. In July 2024 the landlord gave notice to the tenants that the property was being put on the market. Susanne Novy of Shelter Realty was the listing agent and she immediately began liaising with the tenants about access for viewing and other functions related to selling a property.
As the owner’s listing agent, I determine that Ms Novy is an agent of the landlord under section 2 of the Residential Tenancies Act, 1986, (the “RTA”). Unlawful entry
Kathryn Gray and Raphael Queye-mary Boudier claim the landlord has entered the premises without consent or notice.
The tenants stated that once the property sold, Ms Novy was very eager for them to move out as soon as possible. After the last open home on either 11 or 12 August 2024, Ms Novy left the property. Approximately five minutes later both Ms Gray and Mr Boudier heard Ms Novy open the front door and re-enter the premises. Neither of them heard anyone knock on the front door.
Ms Novy accepts she did this. Ms Novy explained that she knocked but no one answered. Because she had just been inside conducting the open home, Ms Novy was sure the tenants were home, so she opened the door to call out to them. This wasn’t necessary as Mr Boudier was quickly approaching.
Ms Novy explained that her purpose in returning was to let Ms Gray and Mr Boudier know that she had a colleague in her office that could assist them find a new place to live if they wished. Ms Gray and Mr Boudier accepted the offer.
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. See section 48(1) and (2) Residential Tenancies Act 1986.
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.
Just prior to the landlord re-entering the premises, the landlord had been lawfully on the premises to conduct an open home. There is no argument from the landlord that the open home was continuing in anyway, or that the landlord had a continuing right to be inside the premises. This was a situation more akin to a neighbourly friend visiting and entering the premises because they have permission from the occupier, either implicit or express, to come and go as they wish.
However, Ms Gray and Mr Boudier did not extend this right to Ms Novy. Despite Ms Novy’s good intentions, her license to be on the premises had ended, and in re-entering, she was in breach of the Residential Tenancies Act, 1986, (the “RTA”).
This claim is proved.
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.
In determining whether it would be just to award exemplary damages, I consider that the breach was in very close temporal proximity to the landlord having been lawfully on the premises. I also consider the extent of the breach which I consider to be minimal, in that Ms Novy was not “lurking” but entered directly and obviously through the front door, and did not then wander through the premises. I also consider Ms Novy’s intentions which are accepted by both parties and were to broach the possibility of someone from her office assisting Ms Gray and Mr Boudier to find another place to live. I consider this to be a good intention.
When I consider these factors, I arrive at the conclusion that it would not be just to award exemplary damages in this case, and I decline to do so.
The second complaint of unlawful entry occurred on Sunday 25 August 2024 when Ms Gray and Mr Boudier were conducting a garage sale. On this day their garage door was open and they were standing inside the garage when a car pulled up and parked on the street. Eventually Ms Novy and two other people congregated out the front of the house and entered into a discussion. After several minutes Ms Novy walked up to Ms Gray and Mr Boudier who were in the garage.
Ms Gray and Mr Boudier produced an audio recording of what followed. Ms Novy’s version of events differ a little from what I heard on the audio recording in that she remembers giving more of an introduction as to what her purpose was. On the other hand, Ms Gray and Mr Boudier’s version of what was happening also differs from what I heard on the audio recording in that it appears clear to me that there was a misunderstanding in the communication.
In the audio recording that I heard, Ms Novy approaches Ms Gray and Mr Boudier and there is a brief, friendly greeting. Ms Novy then states that she wanted to show the vendors that the laundry fan was (or was not) working. She evidently demonstrates this. There is then a short exchange between Ms Novy and Ms Gray and Mr Boudier about the fan having not worked throughout the tenancy, and Ms Gray and Mr Boudier having advised the landlord of this. It appears to me at this point, that Ms Gray and Mr Boudier are concerned that they may be held responsible for a defect with the fan. Ms Novy says “No problem” and leaves.
The interaction with Ms Novy in the garage appears to last one to two minutes at most.
Section 48 of the RTA sets out a landlord’s right of entry to the premises. Subsection (7) states that section 48 excludes entry onto land and facilities.
The breach that Ms Gray and Mr Boudier are raising is Ms Novy walking into the garage. They state that even though other people had a right to enter their garage for the purpose of the garage sale, Ms Novy did not enter the garage for the purpose of the garage sale, and therefore her entry was unlawful.
Having listened to the audio recording, I am wholly satisfied that when Ms Novy entered the garage she declared her purpose and in doing so, sought confirmation that what she was doing had the consent of Ms Gray and Mr Boudier. The relevant snippet of conversation is as follows: Novy: “I want to show the vendors the fan is not working.” Ms Gray and Mr Boudier: “Yeah we mentioned that in the ingoing inspection.”
In light of this exchange I consider that the tenants freely gave their consent for Ms Novy to enter the garage for the purpose that she stated, and in so doing Ms Novy entered the garage pursuant to the RTA section 48(1)(a).
I note that Ms Novy had been directly in front of the property for several minutes prior to entering, that there was a garage sale in progress and other people may have been coming and going from the garage, Ms Novy announced her intention as she entered the garage, that the exchange between Ms Novy and Ms Gray and Mr Boudier was friendly and that consent was not withheld in any way.
This claim is therefore not proved. Breach of quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
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.
It is not disputed that when the landlord listed the property that the tenants were living in for sale, they posted on TradeMe photographs of the property that included some of the tenants’ belongings. The photographs were taken with Ms Gray and Mr Boudier’s knowledge and permission. Ms Novy had assured Ms Gray and Mr Boudier that she would smudge out any of their personal belongings shown in the photographs.
Ms Novy says that none of the items shown in the photographs are “personal” items.
Ms Gray and Mr Boudier say that all of their items shown in the photographs are “personal” items.
Clearly there is a disagreement over the use of the word “personal”. The landlord is using a common definition which implies “sensitivity” and the tenants are using another common definition which implies “relating to a person”.
The protection that section 38 of the RTA affords is for the benefit of the tenant. There is therefore a subjective element, as well as an objective element to the test of what is a personal item. Different people have different expectations of privacy, and in this case the tenants believe the landlord breached their expectation. I cannot go past this. I have seen the photographs and I have seen nothing of a sensitive nature published in them, but I accept that to Ms Gray and Mr Boudier, the publication of any of their belongings breaches their expectation of privacy.
I find this claim of breach of quiet enjoyment proved.
With regard to this claim I have not heard any information that puts Ms Novy’s actions beyond insensitive and uncaring. The facts relating to this breach of privacy claim do not suggest a “course of action by the harasser”. Because it has not been proven that the breaches amount to harassment, the breaches cannot in law amount to an unlawful act, and exemplary damages are not available.
The second claim for breach of privacy relates to the occasion when Ms Novy re-entered the tenants’ premises. On this occasion her reason for doing so was to ask the tenants whether they would like her to engage one of her associates to help them find another place to rent.
Ms Gray and Mr Boudier accepted her offer.
Ms Novy then returned to her office, and gave her associate “Sunny” Ms Gray’s name and number for him to contact for the purpose of finding somewhere else to live.
Ms Gray and Mr Boudier consider this to be a breach of their reasonable expectation to privacy in that they consider it would have been more appropriate for Ms Novy to give them Sunny’s contact details, rather than divulge Ms Gray’s name and telephone number to Sunny.
Ms Novy does not dispute passing on the information, but she says it was to a person in her office for an agreed purpose, she believed she was doing it with Ms Gray and Mr Boudier’s consent, Ms Gray and Mr Boudier should have understood what she was going to do and objected if they didn’t want it to happen, and that no harm came of her actions.
In the circumstances I agree entirely with Ms Novy. I do not consider this to be a breach of Ms Gray and Mr Boudier’s personal information in that Ms Novy’s action were reasonably foreseeable and the passing on of this limited information does not go beyond the instructions that she had impliedly been given.
This claim is not proved. Filing fee
Because the applicant has not substantially succeeded with their claim, no award for reimbursement of the filing fee is made.

Tenancy Tribunal case 5019428 — Harassment at 5 Tuatua Road, Hobsonville, Auckland 0616

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Tenancy Tribunal case 5019428 — Harassment at 5 Tuatua Road, Hobsonville, Auckland 0616

At a glance

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Order

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Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions