Tenant Wins Relief for Unlawful Entry and Breach of Quiet Enjoyment

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[2025] NZTT 5019428

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. One claim of unlawful entry is proved. The other is dismissed.

2. One claim of breach of quiet enjoyment is proved. The other is dismissed.

3. No award for exemplary damages is made.

Reasons:

1. Both parties attended the hearing. [NAME] represented herself and Mr [NAME]-[NAME] as the tenants.

2. The landlord was represented by [NAME] of Barfoot and Thompson. Because all of the complaints involved the actions of Ms [NAME] spoke on her own behalf throughout the hearing in response to the claims.

3. The tenants have raised two claims each of unlawful entry and breach of quiet enjoyment during the tenancy. They seek a remedy of exemplary damages for each.

4. The tenancy began as a one-year fixed-term tenancy on 14 October 2023. In July 2024 the landlord gave notice to the tenants that the property was being put on the market. [NAME] of [NAME] was the listing agent and she immediately began liaising with the tenants about access for viewing and other functions related to selling a property.

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5. As the owner’s listing agent, I determine that [NAME] is an agent of the landlord under section 2 of the Residential Tenancies Act, 1986, (the “RTA”).

Unlawful entry

6. [NAME] and [NAME] claim the landlord has entered the premises without consent or notice.

7. The tenants stated that once the property sold, [NAME] was very eager for them to move out as soon as possible. After the last open home on either 11 or 12 August 2024, [NAME] left the property. Approximately five minutes later both [NAME] and [NAME] heard [NAME] open the front door and re-enter the premises. Neither of them heard anyone knock on the front door.

8. [NAME] accepts she did this. [NAME] explained that she knocked but no one answered. Because she had just been inside conducting the open home, [NAME] was sure the tenants were home, so she opened the door to call out to them. This wasn’t necessary as [NAME] was quickly approaching.

9. [NAME] explained that her purpose in returning was to let [NAME] and [NAME] know that she had a colleague in her office that could assist them find a new place to live if they wished. [NAME] and [NAME] accepted the offer.

10. A landlord may not enter the 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) Residential Tenancies Act 1986.

11. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

12. Just prior to the landlord re-entering the premises, the landlord had been lawfully on the premises to conduct an open home. There is no argument from the landlord that the open home was continuing in anyway, or that the landlord had a continuing right to be inside the premises. This was a situation more akin to a neighbourly friend visiting and entering the premises because they have permission from the occupier, either implicit or express, to come and go as they wish.

13. However, [NAME] and [NAME] did not extend this right to [NAME]. [NAME]’s good intentions, her license to be on the premises had ended, and in re-entering, she was in breach of the Residential Tenancies Act, 1986, (the “RTA”).

14. This claim is proved.

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15. 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.

16. In determining whether it would be just to award exemplary damages, I consider that the breach was in very close temporal proximity to the landlord having been lawfully on the premises. I also consider the extent of the breach which I consider to be minimal, in that [NAME] was not “lurking” but entered directly and obviously through the front door, and did not then wander through the premises. I also consider [NAME]’s intentions which are accepted by both parties and were to broach the possibility of someone from her office assisting [NAME] and [NAME] to find another place to live. I consider this to be a good intention.

17. When I consider these factors, I arrive at the conclusion that it would not be just to award exemplary damages in this case, and I decline to do so.

18. The second complaint of unlawful entry occurred on Sunday 25 August 2024 when [NAME] and [NAME] were conducting a garage sale. On this day their garage door was open and they were standing inside the garage when a car pulled up and parked on the street. [NAME] and two other people congregated out the front of the house and entered into a discussion. After several minutes [NAME] walked up to [NAME] and [NAME] who were in the garage.

19. [NAME] and [NAME] produced an audio recording of what followed. [NAME]’s version of events differ a little from what I heard on the audio recording in that she remembers giving more of an introduction as to what her purpose was. On the other hand, [NAME] and [NAME]’s version of what was happening also differs from what I heard on the audio recording in that it appears clear to me that there was a misunderstanding in the communication.

20. In the audio recording that I heard, [NAME] approaches [NAME] and [NAME] and there is a brief, friendly greeting. [NAME] then states that she wanted to show the vendors that the laundry fan was (or was not) working. She evidently demonstrates this. There is then a short exchange between [NAME] and [NAME] and [NAME] about the fan having not worked throughout the tenancy, and [NAME] and [NAME] having advised the landlord of this. It appears to me at this point, that [NAME] and [NAME] are concerned that they may be held responsible for a defect with the fan. [NAME] says “No problem” and leaves.

21. The interaction with [NAME] in the garage appears to last one to two minutes at most.

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22. Section 48 of the RTA sets out a landlord’s right of entry to the premises. Subsection (7) states that section 48 excludes entry onto land and facilities.

23. The breach that [NAME] and [NAME] are raising is [NAME] walking into the garage. They state that even though other people had a right to enter their garage for the purpose of the garage sale, [NAME] did not enter the garage for the purpose of the garage sale, and therefore her entry was unlawful.

24. Having listened to the audio recording, I am wholly satisfied that when [NAME] entered the garage she declared her purpose and in doing so, sought confirmation that what she was doing had the consent of [NAME] and [NAME]. The relevant snippet of conversation is as follows:

[NAME]: “I want to show the vendors the fan is not working.”

[NAME] and [NAME]: “Yeah we mentioned that in the ingoing inspection.”

25. In light of this exchange I consider that the tenants freely gave their consent for [NAME] to enter the garage for the purpose that she stated, and in so doing [NAME] entered the garage pursuant to the RTA section 48(1)(a).

26. I note that [NAME] had been directly in front of the property for several minutes prior to entering, that there was a garage sale in progress and other people may have been coming and going from the garage, [NAME] announced her intention as she entered the garage, that the exchange between [NAME] and [NAME] and [NAME] was friendly and that consent was not withheld in any way.

27. This claim is therefore not proved.

Breach of quiet enjoyment

28. A landlord must not 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.

29. 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.

30. 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.

31. It is not disputed that when the landlord listed the property that the tenants were living in for sale, they posted on TradeMe photographs of the property that included some of the tenants’ belongings. The photographs were taken with [NAME] and [NAME]’s knowledge and permission. [NAME] had assured Ms

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[NAME] and [NAME] that she would smudge out any of their personal belongings shown in the photographs.

32. [NAME] says that none of the items shown in the photographs are “personal” items.

33. [NAME] and [NAME] say that all of their items shown in the photographs are “personal” items.

34. Clearly there is a disagreement over the use of the word “personal”. The landlord is using a common definition which implies “sensitivity” and the tenants are using another common definition which implies “relating to a person”.

35. The protection that section 38 of the RTA affords is for the benefit of the tenant. There is therefore a subjective element, as well as an objective element to the test of what is a personal item. Different people have different expectations of privacy, and in this case the tenants believe the landlord breached their expectation. I cannot go past this. I have seen the photographs and I have seen nothing of a sensitive nature published in them, but I accept that to [NAME] and [NAME], the publication of any of their belongings breaches their expectation of privacy.

36. I find this claim of breach of quiet enjoyment proved.

37. With regard to this claim I have not heard any information that puts [NAME]’s actions beyond insensitive and uncaring. The facts relating to this breach of privacy claim do not suggest a “course of action by the harasser”. Because it has not been proven that the breaches amount to harassment, the breaches cannot in law amount to an unlawful act, and exemplary damages are not available.

38. The second claim for breach of privacy relates to the occasion when [NAME] re-entered the tenants’ premises. On this occasion her reason for doing so was to ask the tenants whether they would like her to engage one of her associates to help them find another place to rent.

39. [NAME] and [NAME] accepted her offer.

40. [NAME] then returned to her office, and gave her associate “[NAME]” [NAME]’s name and number for him to contact for the purpose of finding somewhere else to live.

41. [NAME] and [NAME] consider this to be a breach of their reasonable expectation to privacy in that they consider it would have been more appropriate for [NAME] to give them [NAME]’s contact details, rather than divulge [NAME]’s name and telephone number to [NAME].

42. [NAME] does not dispute passing on the information, but she says it was to a person in her office for an agreed purpose, she believed she was doing it with [NAME] and [NAME]’s consent, [NAME] and [NAME] should have

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understood what she was going to do and objected if they didn’t want it to happen, and that no harm came of her actions.

43. In the circumstances I agree entirely with [NAME]. I do not consider this to be a breach of [NAME] and [NAME]’s personal information in that [NAME]’s action were reasonably foreseeable and the passing on of this limited information does not go beyond the instructions that she had impliedly been given.

44. This claim is not proved.

Filing fee

45. Because the applicant has not substantially succeeded with their claim, no award for reimbursement of the filing fee is made.

[NAME]

20 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.

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: