Tenant Awarded Damages for Unlawful Entry and Privacy Breach

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[2025] NZTT 5100528, 5153076

TENANCY TRIBUNAL AT HAMILTON | TE TARAIPIUNARA RETIHANGA KI KIRIKIRIROA

APPLICANT: [redacted]

Tenant

CROSS-APPLICANT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [NAME] and [NAME] $50.64 immediately, calculated as shown in table below.

Description Landlord Tenant Rent arrears $1,817.14 Water rates $146.45 Repairs: walls $575.77 Exemplary damages: unlawful entry into premises $750.00 Bond already held by landlord $1,840.00 Total award $2,539.36 $2,590.00 Net award $50.64 Total payable by Landlord to Tenant $50.64

2. The clauses in the tenancy agreement that the tenants must pay commercial cleaning costs at the end of the tenancy and must have contents insurance (and a copy be available to the landlord to view) are of no effect.

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Reasons:

1. [NAME] (for both tenants), [NAME], and [NAME] (the landlord’s partner)1 attended the hearing held in person.

2. The tenants and the landlord have applied to the Tribunal.

3. The tenants have applied for exemplary damages (which are like a fine) alleging the landlord:-

a. Failed to lodge the bond,

b. Unlawfully entered the tenancy premises on several occasions,

c. Breached the tenants’ privacy, and

d. Included unenforceable clauses in the tenancy agreement.

4. The landlord has applied for:-

a. Payment of rent owing of $1,722.86,

b. Payment of water rates of $259.84,

c. Compensation for damage to stove of $317.53,

d. Compensation for repair of walls of $1,151.54.

5. This tenancy started on 7 June 2021 and ended on 18 December 2024.

Background

6. The tenancy premises are next door to where the landlord and his partner live.

7. The parties agree that the relationship between them was positive in many ways and for much of the tenancy. However, a few incidents changed things.

8. The tenants say the landlord did not respect their privacy and crossed the line by coming into their house without being asked and shouting at them about a maintenance issue. This was the last straw, and they gave notice and moved out.

9. The tenants then discovered the bond was not lodged at the [COMPANY] and the landlord accepts this was overlooked. The tenants agreed the landlord should keep the bond to cover rent owing up to the end of the tenancy.

10. I address all claims below.

1 [NAME] is not a landlord but is [NAME]’s partner and managed some of the tenancy matters so is referred to as a landlord in this decision.

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Rent and water rates calculations

11. The parties agree that there is rent owing of $1,817.14 up to the last day of the tenancy on 18 December 2024. This was calculated in the hearing taking into account a rent increase from 31 August 2023.

12. The tenant agrees to pay the final water bill. I deduct the $65.00 charge for a meter reading as this was the landlord’s decision. It is adequate to take a dated photograph of the water meter. I note that usually a landlord pays the fixed or daily charges for water as section 39(1) of the Residential Tenancies Act 1986 states that landlords pay for outgoings that are incurred whether or not premises are occupied.

Damage claims

13. The landlord claims compensation for damage to two elements on the stove and to two walls in the lounge.

14. The law requires that a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear.

15. The landlord did not take photographs or record the condition of the premises and chattels at the start of the tenancy.

16. My decision is that the landlord has not proven that the stove elements were damaged during the tenancy or that the damage is more than wear and tear. The photos of the elements show an older style stove with normal minor corrosion. It is common for elements to wear or stop working over time and for an older appliance and a tenancy of more than 3 years long, it is probable the damage was from normal use. This claim is dismissed.

17. The landlord has proved that one wall in the living area was left at the end of the tenancy with two strips of mismatched wallpaper (a photo from a healthy homes inspection proves this wallpaper was not on the wall at the start of the tenancy). The landlord removed the wallpaper (which was still wet with glue) and discovered four roughly patched holes in the wall underneath.

18. The landlord says another wall also had holes wallpapered over but did not have photographs to show this set of holes.

19. My decision is that the landlord has proved that it is more probable than not that the tenants glued four strips of mismatched wallpaper over holes in two walls. The tenant denied this, but I prefer the evidence of the landlord because it is supported with the photographs.

20. Tenants are liable to compensate a landlord for any careless or intentional damage. See sections 40(2)(a), 41 and 49B RTA.

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21. It may not have been intentional to cause the holes in the walls but covering them with mismatched wallpaper was deliberate.

22. The landlords claim $920.00 for plastering the holes and preparation for painting, and $231.54 for paint and roller sleeve kit (receipts were supplied).

23. The landlords painted the entire open plan living area so that it would match. They did this work themselves and do not claim compensation for their time.

24. I award $575.77 to the landlord which is 50% of the costs they incurred. The work was required because of the damage by the tenants but I reduce the award to allow for the fact that redecorating would have been required in the next few years anyway (it was last done about 4 or 5 years earlier).

25. The landlord included a claim for damage to carpet but this was added after the claims had been finalised at a case conference. The tenant objected to this being included so it has not been considered.

Failure to lodge the bond

26. As noted above, the landlords accept that they failed to lodge the bond with the [COMPANY].

27. A landlord must send any bond payment to the [COMPANY] within 23 working days after the payment is received. See section 19(1) RTA.

28. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00; s19(2) and Schedule 1A RTA.

29. The landlords told me they overlooked doing this. They said they had previously only had bonds transferred to them and not dealt with a bond payment directly to them before. This should make them more careful and I am surprised they did not keep track of the large payment received from the tenants when the tenancy started.

30. However, I have decided to give them the benefit of the doubt and accept the breach was not intentional. This means that exemplary damages cannot be awarded. The landlords must understand that all money paid to them as bond in future must be lodged promptly.

Unlawful entry into the premises and breach of privacy

31. The tenants claim the landlord entered the premises without consent or notice on at least two occasions. They also say that the landlord interfered with their privacy.

32. I deal with these issues together as they are related.

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33. The legal requirements are:-

a. A landlord may not come into the inside of tenancy 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) RTA. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.

b. A landlord must not interfere with the reasonable peace, comfort or privacy of a tenant in their use of the premises. See section 38(2) RTA. 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.

34. The landlords live next door to the tenancy premises. It is easy to become relaxed about the boundaries that apply when you see someone most days. A landlord needs to remember that a tenancy is a formal relationship, and that legal protections and boundaries apply.

35. After hearing oral evidence from both sides, and reading the communication given in evidence, my decision is that it is more probable than not that the landlord ([NAME]) did unlawfully enter the tenancy premises. I find that this occurred on the evening of 15 November 2024 after disagreement between the parties about who was responsible for the leaking of the hot water cylinder.

36. The landlord denies that he entered the premises without consent. He denies shouting and accusing the tenants of causing the leak issue.

37. I prefer the evidence of the tenants as it is supported by a later email sent to the landlord asking that [NAME] not attend a scheduled inspection because of the incident. [NAME] explained that it was this incident that led to him and his wife applying for another tenancy and giving notice to move out. The timing of this supports the tenants’ account of events.

38. The unlawful entry was intentional. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.

39. I find that the landlord’s intent was that he was angry and wrongly thought the tenants had damaged the hot water cylinder. The effect of this event on the tenants was significant. They moved out because they no longer felt secure in their home. The tenants’ interests are that they can rely on a landlord to comply with their legal obligations. It is very important that tenants know they can control who enters the home that they are paying rent for. There is a public interest in making sure landlords understand that this protection is absolute. They must always directly ask for consent, or give written notice, before coming inside a

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tenant’s home (unless there is a genuine emergency such as a risk to life, health or of significant damage to property).

40. It is just to award exemplary damages. I award $750.00 which is half of the maximum.

41. The tenants described other occasions when they feel [NAME] did not respect their privacy including coming inside the house on one occasion early in the tenancy when [NAME] was home alone and without specifically asking first, coming to the door to ask for help with various jobs around the property, and entering the house with the plumber who came to fix the hot water cylinder.

42. There is not enough evidence for me to say that the landlord unlawfully entered the premises on these other occasions. [NAME] provided a written statement (as she was not present at the hearing) which indicates she is not a person who easily speaks up for herself. The landlord may not have realised he was offending the tenants by some of his actions.

43. I note that there are texts showing that the landlords did courteously notify the tenants when other entries into the premises were needed (for example, from a locksmith, or to arrange an inspection).

44. My conclusion is that the evidence does not prove a breach of privacy or harassment. The tenants acknowledge that they did not clearly tell the landlord that they did not want to be disturbed.

Unenforceable clauses in the tenancy agreement

45. The tenants say that the landlord included terms in the tenancy agreement that are unenforceable because they go beyond what a tenant is legally required to do.

46. The clauses are:-

a. That commercial cleaning costs are payable, and

b. That tenants must have contents insurance and a copy of this must be made available to view by the landlord.

47. The tenants are correct that these clauses are not enforceable. Section 11 RTA says that usually any clause or arrangement that is inconsistent with or aims to exclude, modify or restrict the Act is of no effect. I have made a declaration.

48. A landlord cannot require commercial cleaning. The standard required for both landlords and tenants is “reasonably” clean; s40 and s45 RTA. A landlord can choose to provide a property in a better condition than this but this is a business cost they take on as part of wanting to attract tenants. The tenant does not have to leave the house at this higher standard. The Tribunal generally considers that reasonably clean means vacuumed, benches and cupboards wiped, bathroom

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and toilet cleaned, and dirty marks removed. It does not mean spotless, or pristine or immaculate.

49. A landlord cannot require a tenant to insure their belongings. If a tenant’s belongings are damaged or stolen, there is no loss to the landlord. A landlord can suggest or recommend that contents insurance is a good idea (for example, if the tenancy premises burned down, there was a flood, or a break-in) but cannot require it or ask to see the policy.

50. I do not award compensation or exemplary damages. Fortunately, the tenants found out from a friend that the landlord could not require them to employ a commercial cleaner. If they had arranged this and paid for the cleaner, the Tribunal may have awarded compensation for the cost.

51. Exemplary damages only apply to some breaches of the law (called “unlawful acts” – these are listed in Schedule 1A RTA). These unenforceable clauses are not specified as unlawful acts.

Filing fee and suppression of name

52. Both parties have made valid claims, and both have paid filing fees, so I make no orders about those.

53. Both parties have partially succeeded with their claims, but both have failed to comply with some of their obligations. I have decided the public interest means neither name is suppressed.

54. The amount of the bond (held by the landlord) is applied to the amounts to be paid. The end result of the orders is that the landlord must pay the tenants $50.64.

[NAME] 19 May 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

Reasons: