Tenant's Claim for Harassment and Unlawful Termination Dismissed

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[2025] NZTT 5052870

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The application is dismissed.

Reasons:

1. Both parties attended the hearing.

2. The relevant background to this matter is:

a. The tenancy began on 14 February 2024 with a fixed term of one year. As I understand it [[NAME]] was not originally on the lease but was moved and soon after the tenancy began.

b. The evidence shows that personality issues arose between [[NAME]] and the other original tenants. The nature and extent of these are in dispute, however, one of the original tenants provided a statement in text form which confirms that she had concerns around [[NAME]]’s heavy cannabis use and behaviour. I will not enumerate the specific behaviours but note that the descriptions of these behaviours by both that original tenant and the new tenants are consistent, as are their descriptions of being unsettled and disturbed by her behaviours. In an email to the landlord dated 4 July 2024, [[NAME]] describes the breakdown of her relationship with the other original tenants, and that they want her to move out which she considers unfair. She also describes some of her own personal issues.

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c. The other three original tenants transferred their interests in the lease to 3 new tenants and moved out on or around 27 July 2024. The new tenants moved in between 3 August and 9 September 2024.

d. Personality issues of a similar nature arose between [[NAME]] and the new tenants. These appear to have begun reasonably quickly with the first correspondence between the individual tenants and the landlord dating from mid-September 2024. [[NAME]] describes the tenants’ attitude towards her as bullying and says that it began on or around 6 September 2024.

e. On 13 September 2024, one of the new tenants, apparently with the consent of the other two, sent a text message to [[NAME]] requesting that she move out of the property. This was because discussions around finding a mechanism to amicably continue to share the tenancy had failed.

f. On 14 September 2024 the three new tenants emailed [[NAME]] and requested that she voluntarily leave the property. The offer was that the three new tenants would cover the full rent until the end of the lease and did not expect [[NAME]] to find a replacement for her room.

g. On 15 September 2024, the landlord emailed all tenants in response to an email describing [[NAME]]‘s cannabis use. He advised that smoking cannabis on the property was unlawful and was a breach of the tenancy agreement. [[NAME]]‘s response was in effect that she had a prescription for CBD products and had not been aware that this did not cover smoking looseleaf cannabis, but that she would no longer do so.

h. On 17 September 2024, in response to a request for the new tenants, the landlord had locks installed on the bedroom doors of the three new tenants.

i. On 20 October 2024, the three new tenants made a formal request to the landlord to consent to the assignment of the tenancy to the three of them, with [[NAME]] removed from the lease.

j. On 23 October 2024, the landlord provided consent to the assignment of the lease with affect from 27 October 2024.

k. [[NAME]] refused to leave, taking a view that the assignment was unlawful. Following a trespass notice being issued and the Police visiting, she moved out, under duress on 3 November 2024.

3. [[NAME]] brings an application against the landlord for:

a. alleged breaches of her quiet enjoyment, specifically for allowing the new tenants to harass and bully her in breach of S 38 (2) and S 45 (1) (e) for which she seeks $3000 exemplary damages and compensation for rent for

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a seven-week period during which she says she was unable to dwell at the tenancy; and

b. unlawfully terminating the tenancy by accepting the assignment of the lease, for which she seeks $6500 exemplary damages, and compensation for her storage costs of $800, moving costs of $250, and break fees for power gas and Wi-Fi totalling $460.

Quiet enjoyment

4. [[NAME]] claims the landlord has permitted the other tenants to interfere with her quiet enjoyment. She says that the communications she had with the landlord regarding the issues between 14 September 2024 and until she left the flat on 3 November 2024 were sufficient notice that she was being harassed. However, she says he took no steps to prevent this ongoing harassment.

5. A landlord must not allow others to 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.

6. 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". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

7. The landlord is also under an obligation to “take all reasonable steps to ensure that none of [their] other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant and the use the premises”. See section 45 (1) (e) Residential Tenancies Act 1986. A breach of this obligation is not an unlawful act for which exemplary damages may be awarded.

Analysis

8. In [NAME] v [NAME] the Tribunal considered a claim that a tenant’s quiet enjoyment had been breached by her co-tenant and brought a claim against the landlord relying on section 45 (1) (e). The Tribunal found that:

The difficulty with [NAME] identifying [NAME] as the landlord’s “other tenant” is that [NAME] is actually [NAME]’s joint tenant i.e. they are wholly jointly “the tenant”. … That is something of a legal technical point but nevertheless in my view, is fatal to [NAME]’s claim.

9. The duty in S 38(2) is that the landlord must not permit interference with quiet enjoyment. The duty in section 45 (1) (e) requires the landlord is to take reasonable steps to prevent the alleged harassment from continuing. A breach of either section is one of omission; that the landlord has taken either no steps

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or adequate steps to prevent the continued harassment. The obligation and what is reasonable must be considered in light of the other duties and obligations under the Act. For example, it is not difficult to imagine circumstances where the protection of one tenant’s quiet enjoyment could lead to an interference with another’s. Moreover, the landlord’s obligations do not extend to stepping into the affairs of the tenants who are independent adults.

10. In this situation the landlord was presented with a situation where not one, but two sets of other tenants had made allegations about [[NAME]]‘s cannabis use and behaviours. These allegations had occurred in a short period. The difficulty faced by the landlord is that the emails sent by the new tenants were in effect notices that [[NAME]] was interfering with their quiet enjoyment. These allegations were made less than two months after the original tenants had assigned the lease. The landlord did take steps; the installation of locks, advising [[NAME]] that her cannabis use was in breach of the lease, and finally accepting the assignment.

11. While I acknowledge that [[NAME]] feels that the steps taken by the landlord targeted her rather than those that she feels were interfering with her quiet enjoyment, and the circumstances the steps were reasonable. I do not find that [[NAME]]’s claim for breach of quiet enjoyment is made out.

Assignment of the lease

12. [[NAME]] claims the landlord’s acceptance of the assignment of the tenancy was unlawful. She has abandoned her application for reinstatement on the lease, but still seeks damages set out at paragraph [3] b. above.

13. She claims that the acceptance of the assignment was an unlawful termination of the tenancy without grounds in breach of S 60AA.

14. The circumstances of the assignment are:

a. both the landlord and the new tenants sought advice from tenancy services following the exchange of emails in mid-September 2024;

b. they received advice from tenancy services that the lease could not be terminated without consent from [[NAME]], they were however advised that new tenants could assign the tenancy to themselves without naming [[NAME]] on the new lease;

c. the new tenants then sought permission to assign the lease on 20 October 2024, the landlord granted permission on 23 October 2024, and the assignment occurred on 27 October 2024.

15. The landlord and new tenants have argued that the tenancy is a joint tenancy, a joint and several legal construct, where the rights and obligations under the contract are shared by all. Therefore, it is asserted that the new tenants were able to assign [[NAME]]’s rights without her consent. This argument is

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misconstrued. While co-tenancy is a joint and several relationship and makes each tenant liable for the actions of the others, this relationship does not allow any of the contracting parties to act unilaterally in terms of assigning their respective rights. I note that the assignment forms used in this instance are the standard forms prepared by tenancy services, both of which state that all tenants should sign off the assignment. This is not occurred in this instance. This means basic contractual level that the assignment was unlawful and of no effect.

16. However, [[NAME]]’s argument is that the landlord accepting the assignment was unlawful termination. I do not accept this. Assignment is the process of one party to a contract transfers their rights and obligations under the contract to a third party. The new tenants assigned their tenancy rights, not of the landlord.

17. Under the RTA a landlord has limited abilities to refuse a request for assignment. Once the landlord received the written request that he consent to the assignment, he could not withhold his consent without reasonable grounds to do so. Section 40B (5) makes a failure to provide consent without reasonable grounds an unlawful act. The landlord is not required to look beyond the request when responding to a request for consent. Therefore, while the assignment was itself unlawful, the landlord’s acceptance of the assignment was not. Therefore, [[NAME]]’s claim must fail.

18. Considering the requirements for exemplary damages set out in section 109(3) Residential Tenancies Act 1986, even had I found that the landlord was liable in some way for the assignment, I would not have awarded any of the damages sought. The failure of the assignment is a legal technical issue. The landlord had sought the advice of tenancy services in an attempt to resolve a difficult situation where he was forced to make a call between the respective rights of [[NAME]] and the new tenants.

19. Whether fault for the circumstances lay with [[NAME]], or the new tenants the situation was clearly untenable, and could not continue. Had the landlord taken no steps he would potentially have been liable to both parties for breaches to quiet enjoyment. Given the previous history of this tenancy, in particular that this was the second set of tenants who had experienced issues with [[NAME]], and given that the safety concerns were such that door locks were installed on bedrooms, the landlord’s actions were not unreasonable.

20. [[NAME]]’s claims are dismissed.

[NAME] 11 February 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: