Tenant Ordered to Pay Rent Arrears and Exemplary Damages

OUTCOME: Allowed

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[2025] NZTT 5130968

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Landlord

RESPONDENTS: [redacted]

Tenants

TENANCY ADDRESS: [ADDRESS], [POSTCODE], Downstairs Unit

ORDER

1. [NAME_3] must pay [NAME_1] as Agent for [NAME_1] $3,326.00 immediately, calculated as shown in the table below:

Description Landlord Tenant Rent arrears to 20/03/2025 $260.00 Previous order application 5025534 dated 28/11/2024

$2,579.00

Exemplary damages- failure to quit the premise $750.00 Exemplary damages- Failure to allow entry $750.00 Filing fee reimbursement $27.00 Total award $4,366.00 Bond $1,040.00 Total payable by Tenant to Landlord $3,326.00

2. The [COMPANY_7] is to pay the bond of $1,040.00 () to [NAME_1] as Agent for [NAME_1] immediately.

3. [NAME_1] must take any of the tenants’ personal documents that have been left at the premises to the nearest Police station and obtain a receipt for them.

4. The landlord shall dispose of the other goods left at the premises by the tenants by:

a. selling all goods with a saleable value, greater than the cost of storing, transporting and selling the goods, by public auction or by private contract at a reasonable market price, and

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b. disposing of all goods with no saleable value as the landlord sees fit.

5. The amount owing to the applicant out of the proceeds of any sale is $4,826.00.

6. [NAME_1] as Agent for [NAME_1] must pay the proceeds of any sale, less the amount owing, to the [COMPANY_7] together with a copy of this order.

7. This order incorporates the Tribunal order made on 28 November 2024 under application 5025534.

Reasons:

1. Both parties attended the hearing.

2. [NAME_4] and [NAME_6] are the tenant parties listed on the tenancy agreement and bond lodgement form. My understanding is that [NAME_6] no longer resides at the premise, but she has never been formally removed from the tenancy agreement by variation to it. Therefore, she remains jointly and severally liable for any debt incurred by the remaining tenant in relation to this tenancy. I note for completeness that [NAME_6] was not named in the Tribunal’s 28 November 2024 Order as [NAME_4] stated that he accepted liability for the amounts ordered under application 5025534.

3. [NAME_4], who appeared for the tenants, left the call part way through the hearing. I was unable to reconnect him to the phone hearing. After the hearing had ended, I received a message from the registry asking me to call him back. The registry was asked to inform him that the hearing had ended.

4. On 28 November 2024 the Tribunal made an order relating to this tenancy, for rent arrears of $4,079.00 (to 3 October 2024) and the filing fee of $27.00. The previous order is incorporated into this order for enforcement purposes. The amount still owing from this order is $2,579.00.

5. The landlord applied for rent arrears, exemplary damages, refund of the bond and reimbursement of the filing fee.

How much is owed for rent arrears?

6. The landlord provided a rent summary which proves:

a. The tenant did not pay his $260.00 rent on the due date, being 13 March 2025. This is a breach of his tenancy agreement, the tenant’s obligations under s40(1)(a) of the Residential Tenancies Act 1986 (“RTA”) and his obligations under the conditional termination Order dated 28 November 2024, made under application 5025534; and

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b. The tenant has paid $1,500.00 of the $4,052.00 rent arrears, to 3 October 2024, ordered by the Tribunal on 28 November 2024 under application 5025534.

7. I am satisfied that the amounts ordered are proven.

Has the tenancy ended?

8. The tenancy commenced on 16 February 2023.

9. On 30 November 2024, the landlord used the Tenancy Services Template form to issue the tenants with 90 days’ notice of termination of the tenancy. The reason given for the termination was that the owner of the premise was placing the property on the market within 90 days after the termination date. 90 days from 1 December 2024 is 2 March 2025. Unfortunately, the form populated the last day of tenancy as being 2 March 2024.

10. The landlord has produced several text messages and an amended termination notice, also dated 1 December 2024, correctly ending the tenancy on 2 March 2025.

11. On 25 February 2025, [NAME_4] sent a text message confirming he would not be moving out on 2 March 2025 as the first termination notice contained an incorrect termination date. In a follow up text message, dated 7 March 2025, the tenant claims “The notice was unclear and did not meet the fundamental requirements to be effectively logged and not executable rendering it incomplete and thus invalid. The RTA sets out requirements that a valid and correctly completed 'updated' notice of termination be issued. This is valid from the date of issue (taking into consideration the service period stipulated in the RTA) granted it meets the fundamental requirements as set out in the RTA and outlined on Tenancy services website”. I note that the landlord says he is aware that [NAME_6] moved out of the premise approximately 3 months after the tenancy started but no request was made by her to remove her from her legal obligations under the tenancy agreement.

12. Section 51 (3) of the RTA confirms that to be a valid termination notice the notice must:

(a) be in writing; and

(b) identify the premises to which it relates; and

(c) specify the date by which the tenant is to vacate the premises; and

(ca) if the landlord gives less than 90 days’ notice, set out the reasons for the termination; and

(d) be signed by the party giving the notice, or by that party’s agent.

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13. The first termination notice complies with all these requirements (as it is sent by email a signature was not required), except that the date which the tenant is to vacate the premises contains the incorrect year. This error is reasonably obvious to the reader, as 90 days from 1 December 2024 cannot be 2 March 2024. In addition, as soon as the error was brought to the landlord’s attention the landlord has clarified that the correct date was 2 March 2025 and not 2 March 2025.

14. Section 51(4) of the RTA confirms:

“In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non-compliance is not such as to mislead or affect unjustly the interests of the recipient”.

15. I find that the first termination notice should not be held to be invalid for the typographical error in the year, as this is an obvious error that, under the reasonable person standard, would not be found to “mislead or affect unjustly the interests of the recipient” as it is not significant error that is material to the tenant being able to clearly understand when the tenancy is to going to come to an end.

16. I note for completeness that section 51(7) of the RTA confirms: “Where a party has given a notice to terminate the tenancy and subsequently realises that, because of—

(a)some error in the way in which the period of the notice or the date of the expiry of that period is expressed in the notice; or

(b)some delay in serving the notice,—

the period of notice given is less than the minimum prescribed by subsection (1) or (as the case may require) subsection (2) or (2A), that party may, with the agreement of the other party or (failing such agreement) with the consent of the Tribunal, give to the other party a further notice varying the first notice so as to bring the period of notice given up to or above that minimum so required”.

17. The landlord provided evidence that as soon as the error was brought to his attention, on 29 January 2025, he issued a new termination notice with the correct termination year. I find that this reissued notice clarifies the end of tenancy date for the tenant if there had been any genuine confusion and that a completely new termination notice, pursuant to s51(7) of the RTA was not required for the reasons outlined above.

18. I find that the tenancy was lawfully brough to an end on 2 March 2025 and the tenants have continued to refuse to vacate the premise, in breach of this lawful termination notice.

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19. The landlord subsequently also relies on the conditional termination Order 5025534, dated 28 November 2024, to make a further demand that the tenants vacate the premise by 20 March 2025 as they are in breach of the conditions set out in that Order. The landlord has confirmed he will issue a trespass order to the tenants if they have not vacated the premise by 9am tomorrow morning.

Failure to vacate the premise

20. The landlord claims the tenants did not vacate the premises on 2 March 2025, the date the tenancy ended.

21. A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.

22. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.

23. [NAME_4] has continued to claim the 90-day termination notice issued on 30 November 2024 is invalid and he has refused to vacate the premise. This is despite the landlord clarifying the minor error in the notice, being the vacate year incorrectly stated as 2024, should have read 2025.

24. I find the tenants have committed an unlawful act.

25. 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.

26. I am satisfied it would be just to require the tenants to pay $750.00 in exemplary damages (half of the maximum penalty available) because:

a. the termination notice issued on 30 November 2024 provides a genuine lawful reason for the termination of the tenancy and gives 90 days from 1 December 2024 for the tenants to vacate the premise. (0 days from 1 December 2024 is 2 March 2025. The reasonable person would understand that 90 days from 1 December 2024 is not 2 March 2024 and that the 4 is a typographical error that can be exploited to allow the tenants to remain in the premise beyond 2 March 2025;

b. the owner of the property has suffered financial losses, stress and inconvenience as a result of not being able to market the premise with a vacant possession date of on 3 March 2024. The owner is a 90-year-old man that needs to liquidate this capital urgently and has been unable to do so because of the tenants actions;

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c. it is in the interests of the landlord to receive exemplary damages for the stress and inconvenience caused by the tenants’ refusal to move out of the premise; and

d. it is in the public interest for tenants to be penalised as a disincentive to breaching their obligations to vacate the premise at the end of the tenancy.

Order for disposal of tenant’s belongings

27. The landlord has applied for an order to allow him to dispose of the belongings that [NAME_4] has refused to remove from the carport and driveway, in breach of the 14-day notice dated 21 December 2024. This notice requires [NAME_4] to “remove all belongings from the carport and driveway”.

28. The landlord has made several unsuccessful attempts to get [NAME_4] to remove his belongings from the carport and driveway.

29. The landlord has been unable to get [NAME_4] to agree on a date by which he will remove his belongings from the carport and in the driveway, so the landlord has applied for a work order to the disposal of goods that the tenant has left in the carport and in the driveway in front of the garage.

30. [NAME_4] must remove all his belongings, that are currently has stored in the carport and on the driveway/in front of the garage, by 5pm on 21 March 2025.

31. If [NAME_4] has not removed, all his belongings from the property (currently stored in the carport and on the driveway in front of the garage) by 5pm on 21 March 2025, the landlord may dispose of these items as he sees fit. The landlord must take any personal documents he finds in the tenants belonging to the nearest Police Station and obtain a receipt for these documents from a Police employee. See sections 62(3)(b), 62A(5), 62B(2),(3) and (4), 62C(1)(b),(2) and (3) Residential Tenancies Act 1986).

Failure to allow entry

32. The landlord claims [NAME_4] has not allowed the landlord’s real estate agents entry to the premises when they were entitled to enter for the purposes of showing prospective buyers the property and/or for appraising, evaluating, or selling or otherwise disposing of the premise.

33. Section 48(3) of the RTA confirms:

“With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises—

(a) to prospective tenants; or

(b) to prospective purchasers; or

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(c) to a registered valuer engaged in the preparation of a report on the premises; or

(d) to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premises; or

(e) to an expert engaged in appraising or evaluating the premises; or

(f) to a person who is authorised to inspect the premises under any enactment”.

34. Section 48(3A) of the RTA confirms that the tenant (a) may not withhold his or her consent unreasonably; and (b) may make the consent subject to any reasonable conditions.

35. Breaching the tenants s48(3A) of the RTA obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48(4)(b) and Schedule 1A Residential Tenancies Act 1986.

36. It is common for real estate agents to hold two viewings a week for a property they are trying to sell that is currently tenanted. One of these viewing days is typically held on a weekend and one on a weekday to allow the agent to offer options to potential purchasers.

37. The landlord has provided text message correspondence between [NAME_4] and the landlord’s real estate agents that prove [NAME_4] has unreasonably withheld his consent to the agents arranging weekend viewings and viewings over the summer holiday period, that he intends to make things as difficult as he can for the landlord as he is “pissed”, he has “no plans to vacate” the premise, “reasonable access would not be during the weekend of the summer holidays”, and the landlord “has caused me unspeakable and unnecessary inconvenience, I have no intention of reciprocating anything less”.

38. The landlord has also produced an email from [NAME_8] at [COMPANY_10], dated 12 March 2025, that expresses her concerns about the tenant’s belongings in the carport and driveway being unsightly, communications from the tenant that the flat is unlawful, disruption of open homes with loud music and unreasonable refusal to allow open homes resulting in prospective buyers not having been able to view the flat at the same time as the rest of the premise.

39. Further, the landlord has provided an email from the other [COMPANY_10] agent, [NAME_11] dated 14 January 2025, that states the tenant:

“Refuses access or doesn't respond on it at all. (Despite me repeatedly empathising with their feelings and allegations and offering to do viewings when suits them and so on.)

States they have no intention of vacating when they have been given notice. (Therefore, threatening to impede settlement by squatting which if we can't resolve this and I need to disclose it to buyers is going to be a huge red flag and massively negatively impact the sale price possible.)

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States outright that their reason is not to do with their lifestyle but as they wish to be punitive to their landlord. That is, they will ignore the rights of an owner with full knowledge of them to try and maliciously cause inconvenience”.

40. I find [NAME_4] has been obstructive to the sales process and part of that obstruction has been to refuse to reasonably accommodate viewings of the flat for prospective buyers and for the purposes of selling or otherwise disposing of the premises. In doing so, I find he has committed an unlawful act.

41. 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.

42. I am satisfied it would be just to require the tenants to pay a sum of $750.00 in exemplary damages (half of the maximum penalty available) because:

a. [NAME_4] has withheld his consent unreasonably and/or has made consent subject to unreasonable conditions and has actively tried to impede the sales process by unreasonably restricting statutory access rights;

b. the landlord has suffered inconvenience and stress because of [NAME_4] deciding to use access rights for the landlord’s agents as a form of retaliation for what he states the landlord’s unreasonable or unlawful conduct with him;

c. it is in the interests of the landlord to receive exemplary damages for the stress and inconvenience caused by the tenant’s conduct; and

d. it is in the public interest for tenants to be penalised as a disincentive to breaching their obligations to grant real estate agents’ reasonable access for viewings and selling the premise.

Reimbursement of the filing fee

43. [NAME_1] as Agent for [NAME_1] has wholly succeeded with the claim I must reimburse the filing fee.

M Pollak

19 March 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.

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/

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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].

Reasons: