Tribunal Rejects Landlord's Termination Notice, Declares Bond Lodgment Invalid

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[2025] NZTT 5059211, 5098689

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Landlords

RESPONDENT: [redacted]

Tenants

TENANCY ADDRESS: [Tenancy address suppressed]

ORDER

1. The landlords’ application for termination of the tenancy is dismissed.

2. The Notice of Termination given by the landlords dated 17 December 2024 is declared to be invalid and of no effect.

3. The tenants’ application for a declaration that the landlord’s Notice of Termination is retaliatory, is dismissed.

4. [NAME] and [NAME] must pay

Description Underpaid rent Exemplary Damages: fail to lodge bond

Landlord $428.52

Tenant

$500.00 Compensation: breach of right to quiet enjoyment $1,000.00 Exemplary damages: unlawful entry Filing fee Total

$428.52

$500.00 $27.00

$2027.00 Net Award $1,598.48 Total payable by Landlord to Tenant $1,598.48

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Reasons:

1. Both parties attended the hearing.

2. The start of the hearing was delayed so that:

a. [Tenant 1] could participate after attending the start of school powhiri for the children;

b. the landlords could gather evidence about the agreement for sale of the premises.

3. When the hearing resumed, [NAME] chose not to attend or take part. I confirmed with [NAME] that the hearing should proceed in her absence, despite her being a key witness.

4. The premises are situated on a rural property. There is another rented dwelling on the same property owned by the landlords.

5. The parties entered into a periodic tenancy starting on 15 April 2024. Rent is $500.00 per week. A bond of $1,000.00 was paid.

6. It is a term of the agreement that, “Pets will be considered but must consult landlords”

7. On 24 September 2024 the landlords txt the tenants noting that there were 2 horses on the property without the landlord’s permission.

8. It was discovered that one of the horses, a mare (“[The horse]”) was hapu and it was agreed she could stay.

9. On 31 October 2024 [NAME] and the landlord’s daughter told [NAME] after visiting the other dwelling on the property that they had seen [The horse], that she was in very poor condition, “skin and bones” and that the foal had died.

10. [NAME] and [Tenant 2] talked on the phone about [The horse] and how to improve her condition.

11. In the meantime, [NAME] went to view [The horse] but couldn’t see her and went to the premises, where [Tenant 1] was resting after work. A written statement from [NAME] says that she went to the door and knocked but did not go inside. It says she knocked three times and on the third time [Tenant 1] yelled out and said to open the door. [NAME] statement says she did so and asked about [The horse] and also about a goat that was on the property. It says [NAME] then closed the door and left, after which [Tenant 1] came out and told her not to come back. [NAME] then told [Tenant 1] that the landlords were going to give notice to end the tenancy. The statement says that after she arrived home, [Tenant 1] arrived and said to [NAME], among other things,

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“…what’s happening bro’ you’re going to regret this…..” [Tenant 1] was said to be angry and raising his voice.

12. At 7:45pm on 31 October 2024 the landlords txt the tenants, “….we are giving notice to end the tenancy immediately as [Tenant 1] has threatened us, neglected horse in our paddock to which we are ringing the SPCA. You also have had a goat without asking and this happened a few days after us reminding you that you cannot have animals unless you ask first. We are also lodging a complaint with the police due to the threats…”

13. On 1 November 2024 the landlords gave the tenant’s a further notice:

“Under the tenancy act we have to apply to the tenancy tribunal as to why we are wanting to end your tenancy by giving a 90 day notice. We are applying to the tenancy tribunal to end your tenancy on the ground for not following tenancy agreement around asking permission to have animals/ pets and this has occurred 3 times. Also on the grounds that [Tenant 1] came up home and threatened [NAME] when [NAME] asked him to leave and [NAME] started to walk away to deescalate the situation. 90 days from today's date is the 30th January 2025.”

14. The SPCA visited on 1 November 2024 and noted in a report to the tenants that:

“I observed a bay mare named [The horse] which I recognised from a previous inspection I had made on an [Location redacted] property in September 2024. During this previous inspection, the mare was in underweight body condition and suspected to be pregnant. At your property, [The horse] was in an improved body condition and there was a deceased foal in the paddock that was assumed to belong to her. It is believed that the foal had fallen down a hill and become trapped in the fence……..After careful consideration of the facts, your explanation and in particular, the improved condition of [The horse] SPCA has decided not to pursue this matter further on this occasion.”

15. That report tends to corroborate the tenants’ position that the 2 horses were brought to the property to rescue them from neglect by others.

16. The landlords have given evidence of the complaint made to the police about [Tenant 1] acting threateningly. There is no evidence of any police follow up or outcome to their complaint.

17. The termination notice given by the landlords on 31 October 2024, caused discord between the tenants with [Tenant 2] blaming [Tenant 1] for having them evicted – the accusation being that [Tenant 1] had threatened [NAME].

18. On 2 November 2024, the tenants were leaving the premises together when they saw [NAME] at the other house on the property and [Tenant 1] decided to “clear things up” with [NAME], with [Tenant 2] present.

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19. A confrontation developed which was recorded by the neighbour. [Tenant 1] is clearly agitated yelling and swearing at [NAME] and accusing him of not being truthful about the events that led to the termination notice being given. [NAME] says he was threatened, but that is not obvious from the recording apart from what appears to be a comment from [Tenant 1] to the effect, “I never threatened you….I’ll threaten you now…”

20. On 5 November 2024 the landlords sent the tenants another notice:

“Following up in writing the 90 day notice e-mailed to you on the 1/11/2024 regarding giving 90 days notice to end the tenancy...... due to the threats we are now asking for tenancy to end immediately......I also inform you that if we are wanting to end tenancy with a 90 day notice or ASAP due to the threats that it has to be agreed to by the tenancy tribunal.”

21. Later, the landlords decided they would sell the property privately to an acquaintance, and on 17 December 2024 the landlords issued the tenants with a notice requiring them to vacate by 19 March 2024 on the Basis that “The owner is required under an unconditional agreement for the sale of the premises to give the purchaser vacant possession.”

The Applications

22. The landlords applied on 5 November 2024 for immediate termination of the tenancy for the threatened assault (s.55(1)(c)).

23. By the date of the hearing they did not seek immediate termination, on the basis that the tenancy would end on 19 March 2024, by the notice given on 17 December 2024. An Order confirming rent arrears owed was sought.

24. On 16 December 2024 the tenants filed a cross application. They seek:

a. exemplary damages for failure to lodge the bond;

b. exemplary damages for unlawful entry;

c. compensation for breach of their right to quiet enjoyment of the premises;

d. an Order that the notice of termination given on 17 December 2024 is invalid and retaliatory.

Rent

25. There is no dispute that the tenants owe $428.52 in underpaid rent.

Bond

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26. A landlord must lodge any bond payment received from the tenant within 23 working days of receiving it. Failure to do so is an unlawful act for which exemplary damages of up to $1,500.00 may be awarded (s. 19(2) and Schedule 1 RTA).

27. The bond was paid by the tenants at the start of the tenancy but was not lodged by the landlords until 31 October 2024. The landlords have accordingly committed an unlawful act.

28. Where a landlord or tenant commits an unlawful act intentionally, the Tribunal may award exemplary damages where it considers it just to do so having regard to the criteria in s. 109(3) RTA which are:

a. the intent of the party in committing the unlawful act;

b. the effect of the unlawful act;

c. the interest of the other party;

d. the public interest.

29. There is no dispute that the landlords were well aware of their obligation to lodge the bond. They say that there were some initial delays in getting the correct paperwork signed by their tenants and that after that, they overlooked lodging the bond until the issues with the tenants arose on 31 October 2024, which jogged [NAME]’s memory and led to the bond being lodged.

30. I accept that the landlord's failure to lodge the bond may have been an oversight rather than a conscious decision by the landlords not to meet their obligations under the RTA. I take into account that the bond has now been lodged so the tenants’ position is protected. There is a clear public interest however in landlords meeting such a fundamental obligation as lodging the tenants’ bond and it would be just to make a reasonable award of exemplary damages to reflect that.

Should the tenancy be terminated?

31. The Tribunal must terminate a tenancy where a tenant has assaulted or threatened to assault the landlord (s.55(1)(c)).

32. While the evidence shows that [Tenant 1] acted in a hot headed and aggressive way to the landlord’s actions, yelling and swearing and becoming confrontational, the evidence does not suggest an actual assault and does not show clear evidence of a threat to commit an assault on the landlord(s). [Tenant 1] may have used words like “..you'll regret it…” but there are a number of ways that regret could be caused (for instance through these proceedings) that do not amount to assault. I do not find the grounds for termination of the tenancy on that basis proved.

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33. The notices given on 31 October 2024, 1 November 2024 and 5 November 2024 were not effective to end the tenancy. As the landlords later highlighted, an application to the Tribunal would be necessary.

34. The evidence does not show a breach of the tenant’s obligations, incapable of remedy that would make it just to end the tenancy. As regards the breaches of the tenants’ obligations regarding animals on the property, the evidence satisfies me that the horses were managed to the landlord’s satisfaction and it is not proved that the goat was on the property at the tenants’ invitation. In any event, those are breaches capable of remedy and the landlord would need to prove that a 14 day notice to remedy was given but not compiled with, before that could be a basis for ending the tenancy (see s.56(1)(b)).

35. Under s.51(2)(b) as it was when the notice was given, the landlord could end the tenancy on 90 days’ notice where, “…the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession”. That is the basis on which the notice of termination was given on 17 December 2024.

36. The landlords say that an agreement has been reached for sale of the property but after ample opportunity was given to the landlord to provide evidence of that agreement, there is no evidence of such an agreement having been signed. While the landlords may consider themselves committed to the sale of the property on the terms agreed with the purchaser, including providing vacant possession, an enforceable agreement for the sale of land needs to be in writing (s.25 Property Law Act 2007). I do not find that the requirements of section 51(2)(b) have been met. That notice is declared to be invalid and unenforceable.

Was the notice retaliatory?

37. For a notice to be declared retaliatory, the tenants must prove that in terminating the tenancy, the landlords were motivated wholly or partly by the tenants exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.

38. I accept the landlords’ evidence that they have reached the decision to sell the property, including this and the other tenanted dwelling, for reasons related to their own future plans. I do not find it proved that the notice was motivated by the tenants’ exercise of any right under the agreement or any complaint against the landlord.

39. While I have found that the notice was flawed and ineffective, I do not find it to have been retaliatory and that claim is dismissed.

Did the landlord enter the premises unlawfully?

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40. In terms of s.48 RTA a landlord is only able to enter residential rental premises after having given appropriate notice or with the tenants’ consent.

41. Entry otherwise is unlawful and constitutes an unlawful act for which exemplary damages of up to $1,500.00 may be awarded.

42. The evidence shows that [NAME] went to the premises on 31 October 2024 intending to confront the tenants about the condition of [The horse] and the death of her foal. As noted, the written statement given by [NAME] says that she did not enter the premises and did not open the door until invited to do so by [Tenant 1].

43. [Tenant 1]’s evidence is that [NAME] did enter the premises without his invitation. He says she came in through the outside door to the premises to knock on an inner door then through that door before aggressively confronting him with accusations about mistreating the animals.

44. [NAME] has chosen not to give evidence and more weight must be given to the direct evidence of [Tenant 1] than to the unsworn written statement provided by [NAME].

45. I find it proved on balance that when she went to the premises on 31 October 2024 [NAME] entered the premises unlawfully. In doing so she committed an unlawful act and did so intentionally.

46. In considering the s.109(3) criteria referred to above I take into account that:

a. [NAME] was going to the property to confront the tenants on the basis of assumptions she had made about their responsibility for mistreating [The horse] and the foal. Her assumptions appear to have been without substance;

b. there does not appear to have been any pattern of any other instances of the landlord entering the premises unlawfully and [NAME] was acting protectively out of concern for the animals on the landlords’ property;

c. I have found that [NAME]’ actions constitute a significant breach of the tenants’ right to quiet enjoyment of the premises and compensation has been awarded for that breach.

d. clearly [NAME] would have had no right to enter anybody else’s home in the same manner. There a significant public interest in landlords giving tenants’ rights to the peaceful enjoyment of their homes no less respect.

47. Weighing those considerations, I find that an award of exemplary damages of 1/3 of the maximum would be appropriate.

Was the tenants right to quiet enjoyment of the premises breached?

48. Under s.38 RTA:

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“(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”

48. The tenants claim that their right to quiet enjoyment of the premises was breached in the following ways:

a. by the landlord choosing to conduct monthly inspections of the premises;

b. by the landlord giving less notice than required for an intended inspection;

c. by the incident on 31st October 2024;

d. by the landlord making unreasonable and petty criticisms in the inspections;

e. by the landlord issuing a series of unlawful termination notices.

49. The landlords’ evidence confirms their approach of requiring monthly inspections in the early part of tenancies, to enable tenants to “prove themselves” then reduce the frequency of subsequent inspections.

50. Under s.48(2), a landlord has a right of entry to the premises “………for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks”

51. While the landlord may have a right of entry, that right must be exercised in a way consistent with the tenant’s right to reasonable peace comfort and privacy. In my view, requiring regular inspections on monthly intervals, is an unreasonable intrusion.

52. The tenant concerns about the inspection notice relate to an email sent Saturday 2 November 2024 at 10:51 saying, “…we will be doing a house inspection Monday at 5:30pm.” That gives the tenants 48 hours’ notice of the intended inspection and does not breach the landlords’ obligations.

53. The incident on 31 October 2024 was a serious breach of the tenants’ right to quiet enjoyment of the premises. [Tenant 1] was at home resting after work and was confronted by an agitated landlord accusing of mistreating animals.

54. The series of termination notices given by the landlord were not appropriate. The landlords were not entitled to end the tenancy by notice for the reasons given. They were entitled to issue a 14 day notice to remedy if they believed the tenants to have breached their obligations after which they could have brought

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this application. They were not entitled to repeatedly notify the tenants of the day they had to vacate.

55. In terms of the tenants’ concerns about the “pickiness” of the landlords’ inspection requirements they say that after [Tenant 1] fell through rotten deck timber, the landlord put a temporary plywood patch over the hole. After an inspection they were told they had the clean the children’s drawings off that patch. I find that the landlord’s request to do so was quite unreasonable and likely motivated by the ill feeling that had developed. I note that during the hearing [NAME] agreed that he would do a better repair job on the deck.

56. My finding is that cumulatively, that conduct by the landlords breached the tenants right to quiet enjoyment of the premises.

57. The effect on the tenants has been quite profound. There is clear evidence of stress and friction caused between the tenants due to the landlord’s attempts to end the tenancy, and a sense of being harassed, to the point that they want to move as soon as they can.

58. I also need to take into account though that in terms of s. 49 RTA, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

59. The evidence persuades me that the impact on the tenants of the landlords’ breaches has been amplified rather than reduced by [Tenant 1]’s own response to it. To a degree, the tenants are responsible for the escalation of a situation brought about by the landlord’s initial wrong actions.

60. Taking all of those considerations into account I find that the tenants should be paid compensation equivalent to two weeks rent.

61. Where a landlord’s breach of a tenant's right to quiet enjoyment of premises constitutes harassment, the landlord has committed an unlawful act.

62. On balance I do not consider that the landlords’ actions crossed the threshold from a breach of the tenants right to quiet enjoyment to harassment.

63. Because the tenants have substantially succeeded with their claims, I must reimburse the filing fee.

[NAME] 10 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:

-1221750697: [[NAME]] $1,598.48 immediately, calculated in the table below: