What was the outcome of Tenancy Tribunal case 5055409?

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

How much money was awarded in case 5055409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5055409?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5055409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11574017-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5055409?

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

How much money was awarded in case 5055409?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5055409?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5055409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11574017-Tribunal_Order.pdf.

766 Mangawhai Road, Te Arai, RD 5, Wellsford 0975, Tenancy Tribunal Case 5055409 — Rent arrears

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Reasons

Both parties attended the hearing on 14 March 2025. The tenant was assisted by his partner Ms Rubie. Ms Barnes-Wright represented the landlord.

The Tribunal heard evidence from the parties and from Ms Rubie. A written statement from Ms Paikea, the landlord’s support person, was also accepted into evidence. While Ms Rubie and Ms Paikea were support people, I allowed them to provide evidence as well, which is unusual.

The parties also provided documentary evidence and I viewed video and heard sound file evidence. I have considered all the evidence placed before the Tribunal, even if I do not specifically refer to it. Background

The tenancy started on 18 March 2024 following the death of the landlord’s son who resided at the premises. Mr Rouse, who used to call in to visit the deceased tenant, and occasionally stay, then reached an agreement to rent the premises.

The unsigned tenancy agreement recorded a fixed term tenancy until 17 March 2025. However, the landlord considered that the tenancy was a periodic tenancy (the agreement being unsigned) and terminated the tenancy on 90- days’ notice by letter dated 1 August 2024. Earlier, in July, the landlord purported to give verbal notice to terminate the tenancy.

The last day of the tenancy according to the landlord was 1 November 2024. However, the tenant retained the keys until 24 December 2024.

Leading up to the end of the tenancy the relationship between the parties became strained. The tenant’s position is that he was initially prepared to ‘let things be’ but once Ms Rubie moved into the premises and he had a family to consider, he raised issues with the landlord that lead to conflict.

Both parties have filed Tribunal applications alleging breaches by the other. Each party seeks orders including compensation, exemplary damages, and rent arrears. Issues

The issues the Tribunal must determine are: •Did the landlord unlawfully terminate the tenancy? •Did the landlord breach the tenant’s quiet enjoyment of the tenancy? •Did the landlord fail to maintain and repair the premises? •Did the landlord fail to remove the possessions of his deceased son in a timely manner? •Did the tenant fail to quit the premises in terms of the notice given? •Does the tenant owe rent including the component agreed for his labour? •If breaches by either party are proved, what should the Tribunal do? Relevant legal considerations Statutory provisions

Section 38 of the Residential Tenancies Act 1986 (RTA) provides that a tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord and that the landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.

Section 40 RTA sets out a tenant’s responsibilities. Included among them are the responsibility to pay rent when due; to keep the premises reasonably clean and tidy; to leave the premises in a reasonably clean and tidy condition; and to quit the premises when the tenancy ends.

Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to provide the premises in a reasonably clean state; to provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises); and to comply with the Healthy Homes Standards (HHS).

Section 11 RTA provides that a landlord can voluntarily waive all or any rights or powers or incur more extensive obligations than those imposed by the RTA, but a purported waiver by a tenant of any right or power conferred on the tenant by the RTA shall be of no effect.

Section 13A RTA sets out what must be contained in a tenancy agreement.

Section 85 RTA is important in this case for reasons I will explain. So, I will set it out in full: 85 Manner in which jurisdiction is 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. Compensation and exemplary damages

The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities.

Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They are designed to punish and to deter. They are like a fine.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.

In Birch, the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Other considerations

When the Tribunal makes decisions, it is charged with a significant responsibility. The decisions it makes affect people’s lives directly both financially and emotionally. Sometimes, its decisions mean that people’s lives are uprooted, and they become homeless.

While the Tribunal is principally guided by case law, it can look more widely for guidance on principles relevant to the decision-making process.

In 2024, Patrick Girard (now Associate Professor Girard) published his book Logic in the Wild. 1 He explains how logic informs reasoning across science, religion, and, for the present purposes, law. He explains how logic applies to address (and resolve) conflict in thought and action.

Work such as his is important because it can guide decision makers towards making just and fair decisions. He explains a form of logic known as ceteris parabis logic. Ceteris parabis means ‘all things being equal’.

In the matters before me, the tenant’s submissions are based on this kind of logic. His argument goes something like this. The RTA provides sanctions for certain actions by a landlord. The landlord committed those actions. Therefore, the landlord should be sanctioned.

While logical, the enquiry is not that simple. What if all things are not equal? What if there are other relevant considerations that disrupt that kind of logical analysis?

The RTA recognises that this kind of logic might not always lead to a just outcome. That is why I set out section 85 RTA in full. That section directs the Tribunal to consider the substantive merits and justice of the case, so as to ensure the fair resolution of the dispute. Discussion

These applications were born from loss: for the landlord, the loss of a son, for the tenant, the loss of a mate. They were fuelled by that loss and the grief that came with it. So, it is clear that all things were not equal from the very beginning.

I observed parties who were plainly affected by grief. I suspect, with hindsight, each might acknowledge that they could have behaved better towards the other. But grief sometimes prevents that.

These parties entered into a pragmatic arrangement that benefitted each of them. It is not a situation where one party has set out to exploit the other or to take advantage. That the arrangement did not work out does not mean that the Tribunal should impose penalties, given the unique factors at play here. 1 McGill-Queen’s University Press.

Yes, the landlord committed breaches of the RTA. The tenancy agreement was inadequate; it did not comply with the section 13A RTA requirements for the disclosure of insulation, HHS compliance, and insurance details (to name some of the required contents of a tenancy agreement).

The premises were not HHS compliant, and not in a reasonable state of repair. The tenant knew and accepted that. He agreed to do (paid) work on the premises to ‘bring them up to scratch’ so eventually the elderly landlord could live there.

Based on the video and other evidence produced, the landlord probably did interfere with the tenant’s quiet enjoyment.

The landlord failed to remove all his deceased’s son’s property in a timely manner, which caused the tenant emotional discomfort.

The premises were not in a reasonably clean and tidy condition when the tenant started his tenancy, after the death of the landlord’s son.

But this was not an ‘ordinary’ tenancy. The tenant agreed to stay at the premises after the death of the landlord’s son, even though both parties accepted that considerable work was required to bring the property up to a rentable standard. They reached an agreement about that: the tenant would pay a modest rent and would do work on the property for which he would be paid at an agreed rate.

The landlord accepts that he kept no proper rent records as the RTA requires. Ms Barnes-Wright said the arrangement was based on trust. Evidentially, there is nothing to establish the landlord’s claim. The oral evidence of the parties is in conflict.

Only in cases where there was a clearly proven claim for wages in lieu of rent (or as part of rent) would the Tribunal award rent arrears or the equivalent for work done. Here, that clear documentary evidence is absent.

The manner in which the tenancy ended would not persuade the Tribunal to award exemplary damages for a failure to quit the premises. Nor would the Tribunal conclude that the landlord unlawfully terminated the tenancy. By then communication between the parties had broken down.

Poor behaviour does not qualify for exemplary damages. The section 109 RTA criteria are onerous. Here, the tenant believed, probably reasonably, that he had a fixed term tenancy so could ignore the landlord’s 90-day notice to terminate the tenancy. The landlord acted on the belied that it was a periodic tenancy.

Referring back to my earlier analysis, all things were not equal. The informal manner in which the tenancy started, arising from a situation of loss, cannot later be viewed through a lens where all things were equal, with sanctions against both parties for breaches amounting to defined unlawful acts. So, while the answer to most of the questions I have raised as the issues is ‘yes’, the question then arises as to what the Tribunal should do.

That the Tribunal can make orders, does not mean that it always should. That the tenant owes rent of $900.00 by his admission also does not mean he should be ordered to pay it. Given the landlord breaches earlier noted, it would be unjust to order the tenant to pay rent arrears when, ordinarily, if all things were equal, he would have been entitled to some compensation and probably to exemplary damages.

Finally, the tenant alleges the theft of some items of personal property. This is a civil tribunal; it has no criminal jurisdiction. Allegations of theft should be made to the Police so a criminal investigation can ensue. Result

For the reasons given, I dismiss both applications. In the circumstances of this tenancy, it would be neither just nor fair to award compensation or exemplary damages against the landlord, or against the tenant, nor would it be fair to require the tenant to pay the $900.00 he accepts he owes for rent.

This was a tenancy that had to end. While the path to the inevitable end of the tenancy was fraught, the Tribunal notes the tenant’s evidence that he and his family have found a new tenancy where they are happy. Name suppression

Upon my enquiry, neither party sought a name suppression order.

Reasons