A North Shore landlord has been ordered to pay a tenant $4,000 for emotional harm, despite claiming the Tenancy Tribunal did not have jurisdiction to hear the tenant’s claims because she was a boarder, meaning the Residential Tenancies Act 1986 (RTA) did not apply.
The tenant filed 16 claims with the tribunal after a row with the landlord about a damaged bedroom door at the Hillcrest rental. Both landlord and tenant have name suppression.
The landlord lived in her own home next door to the rental. She and the tenant knew each other previously and were on friendly terms until the tenant’s partner destroyed a bedroom door and its frame during a domestic dispute at the four-bedroom house. Mortified, the tenant decided to have the damage repaired before the landlord returned from a month-long overseas holiday, rather than reporting the damage. But the plan went terribly wrong.
As the landlord and her husband passed the rental after returning from their holiday, they heard construction noise and discovered a builder repairing the damage. Upset and outraged, the landlord sent the builder packing. The tenant was initially contrite, but an argument ensued.
Soon after, the landlord gave two weeks’ notice to end the tenancy. Before the tenant moved out, police contacted her because her domestic violence alert had been activated. She went home to discover the premises had no power or water. The loss of power had triggered the domestic violence alarm.
The tenant and her son spent a couple of nights at her mother’s house while her partner got the power and water restored. After she complained to police, a trespass notice was issued against the landlord. A few days later, the tenant again discovered she had no hot water and found the cylinder fuse had been removed. A heated argument began when the tenant confronted the landlord.
The landlord then texted the tenant: “Your board arrangement has been terminated and you are requested to vacate the premises with your belongings immediately. This is due to your verbal and physical threats to do further damage to the property.” The tenant responded by text: “I don’t accept that notice, sorry, as there were no threats made.”
The landlord and her husband told the tribunal that just before notice was given, the tenant threatened to “smash” them. She was “almost drug-infused”, the tribunal was told.
The tenant accepted that during the altercation she said, “turn my f****** power on” and “f*** you” as she stormed off, but denies she said anything else more threatening.
‘Duress and threats’
Subsequently, 16 claims alleging breaches by the landlord were filed at the tribunal, while the landlord claimed rent arrears, repairs for the damaged door and replacement of a vanity unit plus general damages due to the tenant’s alleged “duress and threats”. The general damages claim was dismissed while the tenant has to pay $2,672 to the landlord to settle the remaining claims.
When the tenant moved into the property, she paid $660 a week in rent. No written agreement was made, with the landlord believing it was a” boarding-type” situation. At the tribunal hearing, the landlord claimed the RTA did not apply to the tenancy because she herself was living at the premises and it was a boarding arrangement.
The landlord claimed she and her husband had reserved a workshop-type space within the house to themselves. However, adjudicator R Kee found while the space was within the envelope of the house, it was separate from the rental premises. The landlord also claimed she shared the premises’ kitchen, bathroom and living areas with the tenant and could go into the premises at will.
Kee rejected that claim. “It was simply not part of the agreement, nor would it be acceptable for the landlord to just wander into the premises.”
After outlining the tribunal’s legal jurisdiction, Kee said the RTA did apply to the parties. The $4,000 emotional harm award was made after the tenant told the tribunal she suffered significantly as a result of the landlord’s treatment of her and was hospitalised with high blood pressure because of the impact of the events on her stress levels. She says her mental health was fragile already and she was also dealing with the effects of the domestic violence situation at the time.
When deciding on the amount to award for emotional harm, Kee says the effect on the tenant was significant – “worry, stress, frustration, anxiety, humiliation and insecurity”. He considered Nice Place Property v Ogbourne and Couzens [2017] NZTT 4046775; 4052092 which set out bands for emotional harm. Under the bands, the case was at “the upper end of the scale and an award of more than $3,000 is appropriate”.
The landlord was also ordered to pay the tenant $2,164 for unlawful notice and harassment. Kee said the notice was retaliatory, especially when the landlord knew she was not entitled to give it. “Attempting to end a tenancy immediately is a fundamental breach. It is a repudiation of the contract. It is an attempt to deprive the tenant of their right to occupation of their home forthwith.”
The landlord also had to pay $187.50 in exemplary damages for not having a written tenancy agreement, $100 in exemplary damages for unlawfully entering the property, $900 for interfering with the water and power, despite denying it and not offering any alternative theory as to who else could have done it, $188.57 for two days without utilities and $18 for the hot water cylinder fuse.
As the landlord and tenant had fallen into acrimonious dispute, particularly after the power and water were cut off, Kee says the landlord had a motive, the opportunity and knowledge of the premises to carry out interference to the power and water. “The public interest favours orders to punish and deter this landlord and others from committing such flagrant breaches of their duties.”
Kee said at the root of the fallout in this case was the landlord’s failure to engage with the RTA. “It is in the public interest that landlords fully accept their landlord responsibilities. The landlord is an intelligent and decent person. It is unlikely this situation will recur, given the tribunal’s deterrent orders. If the landlord were to come before the tribunal again, the tribunal itself still has the landlord’s name and the tenancy address and non-publication [of her name] is unlikely to be granted again.”
Sally Lindsay is an Auckland business journalist specialising in property.
0 Comments