Order of the Tenancy Tribunal

Transcription

1 Order of the Tenancy Tribunal Residential Tenancies Act 1986 Office of the Tenancy Tribunal Tenancy Tribunal at Tauranga Tenancy Address 139a Snodgrass Road, RD 4, Tauranga 3174 Applicant Full Name Morgan Lara Byrt (also called Morgan Hoogeveen) (In Bankruptcy Insolvency Number ) Tenant Respondents Full Name Diane Jan Bryant Landlord Order of the Tribunal The Tribunal hereby orders: The landlord Diane Bryant to pay the tenant Morgan Byrt (also called Morgan Hoogeveen) (In Bankruptcy) the sum of $2, immediately calculated as follows: Exemplary damages retaliatory notice $1, Exemplary damages premises not reasonably secure $ Filing fee reimbursement $20.44 Amount payable by Landlord to Tenant $2, The landlord's application for rent arrears is withdrawn at her request. All other of the tenant's and the landlord's applications are dismissed. A copy of this Order is to be sent to the Official Assignee immediately (To: Senior Insolvency Administrator, Margaret Aulavemai: margaret.aulavemai@mbie.govt.nz) (Sections 77(2)(n), 77(2)(q), 78(1)(i) and 109 Residential Tenancies Act 1986) Reasons:

2 Background facts From 2 July 2016 Ms Byrt rented a third storey 2 bedroom apartment in Ms Bryant s house. After receipt of a 42 day termination notice, Ms Byrt found a new place to rent, and then gave her own notice and left on 22 January Ms Byrt shared use of the laundry and access through the main front door of the house with the landlord. 3. On 29 December 2016 before the tenancy ended Ms Byrt applied to the Tribunal for orders seeking exemplary damages for: a retaliatory termination notice; not providing secure locks; failure to maintain and repair the premises; breach of her quiet enjoyment as a result of the landlord s and son s conduct, and unlawful entry; and discrimination. On 10 March 2017 Ms Bryant cross applied for orders for rent arrears and damages for a number of matters, many of which are not within the power of this tribunal to order and others that were essentially defences to the tenant s claims against her. I will deal with that more specifically below. At the hearing on 23 June 2017 Ms Bryant withdrew her claim for rent arrears. So an order is made to withdraw that claim. 5. This matter has had a rather protracted history in part due to insufficient time to complete the hearing when it was first called on 3 February During the second hearing on 15 March 2017 it was revealed that Ms Byrt was a bankrupt so the matter was adjourned to enquire if the Official Assignee wished the matter to proceed which he subsequently confirmed. The hearing was concluded on 23 June Issues The issues for me to determine are: Tenant s claims a. b. c. d. e. f. a. b. Was the termination notice motivated wholly or partly by the tenant s complaints? Did Ms Bryant discriminate against Ms Byrt in the decision to end the tenancy? Were the tenancy premises reasonably secure? Did the landlord fail to provide and maintain the premises in a reasonable state of repair and in accordance with health and safety legislation? Did the landlord interfere with Ms Byrt s right to reasonable peace, privacy or comfort in the use of the premises, through unlawful entry and other conduct? If so, should exemplary damages be awarded? Landlord s claims Was the landlord s alleged stress and breach of privacy caused by the tenant breaching any of her tenancy obligations? Did the tenant misrepresent or fail to disclose information? c. If so, should compensation be awarded?

3 Tenant s Claims Was the termination notice motivated wholly or partly by the tenant s complaints? 9. Ms Bryant gave the tenant Ms Byrt a 42 day notice to end the tenancy on 26 December 2016 so that her son could move in to the apartment. Ms Byrt says that the landlord gave the notice after she had complained about the lack of a proper lock on her apartment door, coupled with her 14 day notice of 9 December 2016 asking the landlord to install a lock. Where the giving of a termination notice by the landlord is motivated partly or wholly by an assertion of rights or a complaint by the tenant, it is an unlawful act and exemplary damages may be awarded up to a maximum of $4, (section 54 of the Act) However where a landlord has an independent and genuine reason for the giving of a termination notice then it might not be considered to be retaliatory (see Kerr v Woodman, District Court, 3 November 1988, Porirua, MA 244/88). Given the short time frame of approximately 2.5 weeks from when the tenant gave the landlord formal notice that she wanted a lock installed, it is reasonable to infer that the termination notice was motivated by this complaint or assertion of rights. I am not persuaded that this inference should be displaced. Although Ms Bryant s son did eventually shift in to the apartment, there was no independent evidence provided to support the landlord s contention of the immediate necessity in 6 weeks for her son and partner to shift in: no documentation was provided confirming the date his existing tenancy was ending or the completion date of the building contract for his new house. The general nature and tone of Ms Bryant s interactions with Ms Byrt at this time were also to the effect that if Ms Byrt wasn t happy, she should leave. I therefore find the notice to be motivated by the tenant s complaint, even if only partly so. I turn next to determine the amount of exemplary damages to award. The giving of the termination notice was intentional so the next question is whether it would be just to award exemplary damages having regard to the factors set out in section 109(3) of the Act: the intent of the landlord; the effect of giving the termination notice; the tenant s interests; and the public interest. 14. There is a strong public interest in deterring landlords from ending a tenancy on the assertion of rights by a tenant reflected in the maximum award of damages Parliament has imposed. Ms Byrt found another rental and eventually left on her own notice. However service of the landlord s notice on Boxing Day meant she incurred additional inconvenience and stress having to look for another rental over the Christmas holiday period. Although Ms Byrt asserts this stress was life threatening for her there is no medical evidence to support that contention. Ms Bryant's intent was not malicious. I accept that she genuinely believed that Ms Byrt was unhappy living in the apartment so that it would be of mutual benefit. Taking all these factors in to account I award $1, Did Ms Bryant discriminate against Ms Byrt in the decision to end the tenancy? 15. Ms Byrt says that Ms Bryant used derogatory and discriminatory words when speaking to her, such as You sicko. She relies on the recordings she took of their conversations to support the tone and nature of comments made by Ms Bryant towards her. She says she felt

4 distressed by such comments as she suffers from various illnesses which may not be apparent visually. A medical report confirms that she suffers from chronic fatigue and fibromyalgia. Disability is a prohibited ground of discrimination, and includes physical or psychiatric illness (section 21(1)(h) Human Rights Act 1993). It is an unlawful act for a landlord to discriminate on the grounds of a disability in respect of the decision to grant, renew, or terminate the tenancy (section 12(1) RTA). That is the extent of the obligation of a landlord in relation to discriminatory acts, other than where behaviour might impinge on the tenant's right to quiet enjoyment, as considered below. 17. As Ms Bryant granted the tenancy to Ms Byrt with some knowledge that she was unwell, she clearly did not discriminate against her at that stage. But I find that one of the reasons underlying Ms Bryant s decision to terminate the tenancy was the demands Ms Byrt was making as a result of her poor health. So to that extent it influenced her decision to terminate the tenancy and was therefore an unlawful act. However no additional exemplary damages are awarded because punitive damages have already been awarded for essentially the same act of termination of the tenancy. Were the tenancy premises reasonably secure? Ms Byrt says that her apartment door was never able to be securely locked because it only had latches on the outside of the bifold doors, and could not be locked from the inside. She says she asked Ms Bryant for months to put a lock on. Ms Bryant says that Ms Byrt took the tenancy on knowing the lock situation and that she could not install a traditional lock on these bi-fold doors. She says she is unable to replace it with a normal door due to space limitations. She says that she put on 2 little padlocks on the outside after her cat strayed and it was not until months later that Ms Byrt raised this issue again when the front door was left open while she was across the road talking to a neighbour. A landlord must provide premises with locks to ensure that the premises are reasonably secure (section 46(1) of the Act). Failure to comply with this obligation is an unlawful act for which exemplary damages can be awarded to a maximum of $1,000 (section 46(3) and Schedule 1A of the Act). The front entrance door is able to be locked. Given this, does the inability to lock the apartment internally and externally mean the premises are not reasonably secure? A tenant is entitled to feel safe and secure in her own apartment, and able to lock herself in her apartment and lock others out. This includes the ability to lock out the landlord who is living in the remainder of the house and any of her visitors. So I find the landlord has failed in her obligation and has committed an unlawful act. 22. Should exemplary damages be awarded? While it was intentional to only have exterior latches on the bi-fold doors I do not find any bad intent on Ms Bryant's part. Ms Byrt did not actively pursue this issue until some months in to the tenancy as the relationship deteriorated. When formal notice was given, Ms Bryant had some secure locks attached. But the effect on Ms Byrt was more than minimal as a result of the landlord entering the apartment to locate her cat and

5 when she accompanied the tradesmen. As Ms Byrt was in bed on one of those occasions the impact was greater than it might otherwise have been. Taking all these factors in to account I consider it just to award exemplary damages of $ Did the landlord interfere with Ms Bryant s right to reasonable peace, privacy or comfort in the use of the premises (breach of her quiet enjoyment)? Ms Byrt traversed at some length the reasons she felt her 'quiet enjoyment' was interfered with. The grounds can best be summarised as follows: u nlawful entry by Ms Bryant and a tradesman; name calling, discriminatory comments, and slights on her housekeeping; being ordered to keep windows open; harassing her carer over use of the laundry; harassment by Mr Bryant's son texting her; Ms Bryant's dog barking during the daytime; Ms Bryant playing music loudly; storing fuel tanks below her window; and using her storage cupboard in the garage. The landlord must not interfere with the tenant s right to reasonable peace, privacy, or comfort in the use of the premises (section 38(2) of the Act). A contravention of this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages up to a maximum of $2, can be awarded. 25. As regards the alleged unlawful entry it is accepted that at least on one occasion Ms Bryant opened the door to let out her cat which had got in through Ms Byrt's open window; and on another occasion she entered with a tradesman to attend to repairs. She did so without prior notice. I do not accept that Ms Bryant entered on other occasions as alleged. While Ms Bryant is in breach of her obligation, I do not award any further damages because I consider the exemplary damages awarded in paragraph 22 above adequately address these breaches. I am not satisfied that the dog barking or music playing were out of the ordinary or unreasonably interfering with her peace and comfort. Ms Byrt's particular health issues cannot impose a greater obligation on the landlord. 27. The allegations of name calling, discriminatory comments, slights and orders to close windows must be seen in the context of the relationship. Initially the parties were friendly but the relationship deteriorated over the 7 months. Ms Byrt's own conduct contributed to the interchanges between them because she started recording their conversations. Although she says she always sought Ms Bryant's consent to do so before she started recording, her own transcripts show that she did not always do so. It is therefore understandable that Ms Bryant found this to be quite provocative. The insistent and regular approaches to Ms Bryant in her living space would also have been quite confronting. Even though Ms Byrt suffers from poor health, she is an intelligent well-educated woman who has to some extent used this to her advantage unfairly in dealing with Ms Bryant. I therefore find no breach. Ms Bryant was entitled to speak to Ms Byrt's carer regarding the shared use of the laundry. It was not unreasonable. Ms Bryant's adult son contacted Ms Byrt via two text messages Ms Byrt regarding his boat petrol tanks. I find nothing untoward about communicating with her. While Ms Byrt claims it is a breach of her privacy, it was a reasonable thing for him to do in the circumstances. 30. Use of Ms Byrt's storage cupboard was inadvertent. It was for a short period at the end of the tenancy and a genuine mistake. Upon being advised of it, Ms Bryant immediately removed the

6 tanks from the cupboard. This is not an unreasonable interference. 31. I do not find any breach regarding the placement of the tanks outside the house under the third storey window. It was sensible to place them outside in the shade. There is no expert evidence to establish that dangerous vapours or chemicals escaped that could have caused an adverse reaction to Ms Byrt. The mere fact that Ms Bryt has sensitivity to chemicals is insufficient to prove any nexus. Second hand evidence of something a fire officer might have said is given no weight. This claim is not therefore proved. Did the landlord fail to provide and maintain the premises in a reasonable state of repair and in accordance with health and safety legislation? 32. Ms Byrt claims the landlord failed to provide and repair the premises in a reasonable state of repair: kitchen taps were too difficult to turn; the hot water cylinder temperature was too high; and insufficient water pressure in the kitchen. The landlord has an obligation to provide and maintain the premises in a reasonable state of repair and in accordance with health and safety legislation (sections 45(1)(b) and (c) of the Act). Failure to do so is an unlawful act for which exemplary damages up to a maximum of $4, may be awarded (section 45( 1A)). The landlord's obligation is not an absolute one. The standard is to a reasonable state of repair. Ms Bryant had tradesmen investigate the issues. I find she responded in a reasonable timeframe to the complaints, and had tradesmen attend to resolve the problems. Again Ms Byrt's own health issues cannot impose a higher obligation on the la ndlord as regards the tap she could not turn. It was possible for her carer to turnt he tap, and there was nothing else that the landlord could reasonably do to avert that problem. I find no breach. 35. Ms Byrt also says that there has been non-compliance with the Building Code D.1.1(a) and (c) Access, and G12 Water Supplies. These provisions have been taken out of context. The Code must be complied with when constructing or renovating a building. There is no evidence that when the house was built that it was not code compliant. In any event access and facilities for persons with disabilities only apply to buildings where the public are permitted to enter (section 118 and Schedule 2 of the Building Act 2004). A residential tenancy is a private building rented to a tenant for their exclusive occupation. It is not a public building so the access provisions quoted are not applicable. 36. In addition the provisions quoted are misleading because they are objectives. I am not satisfied that any of the functional requirements and performance provisions are not met. For example G12.2 provides: Buildings provided with water outlets, sanitary fixtures, or sanitary appliances must have safe and adequate water supplies. In my view there is an adequate and safe supply of hot water to the premises. This claim is not proved. Landlord s claims Was the landlord s alleged stress or breach of privacy caused by the tenant breaching any of her tenancy obligations?

7 As advised at the hearing, in order for the landlord to be entitled to any compensation the tenant must have breached an obligation under the tenancy agreement or under the Residential Tenancies Act Any breach of any obligation under other legislation such as the Privacy Act is a matter for her to take up in other appropriate forums. The quiet enjoyment obligation relates only to the landlord not interfering with the tenant s right to reasonable peace, privacy, or comfort in the use of the premises, not the landlord's privacy. Ms Bryant has chosen to rent out an apartment within her house which means that she is living in close proximity to the tenant. But this does not create corresponding obligations on the tenant not to impact on her living. 39. As regards the recordings taken, it is not a criminal offence to take a recording where a person is a party to that communication as was the case here (see section 216B(2)(i) Crimes Act). In any event, had there been such a breach, I would not have had any jurisdiction to deal with a criminal matter. Such conduct however is relevant in the context of determining if the landlord was in breach of some of her obligations, as noted above. Did the tenant misrepresent or fail to disclose information? 40. A misrepresentation is a misstatement of past or present fact, and may be either intentional or innocent. A half-truth is a misrepresentation, whereas silence or non-disclosure is not a misrepresentation unless there is a positive duty to speak. Ms Bryant says that Ms Byrt failed to tell her that she was a bankrupt, and that she was running a business from the premises, and had she done so she would not have entered in to the tenancy agreement with her. She maintains that Ms Byrt took on the tenancy with the intention of using the tenancy to make money from her. 42. Ms Byrt says she never ran any business from the premises. She had a mobile nail art business but never had clients in the apartment, and was not taking on new clients. On one occasion she did her friend s nails for her wedding at the apartment. She says that her status as a bankrupt is irrelevant because she has always paid her rent, which is confirmed by the landlord withdrawing her claim for rent arrears. She asserts that the notion that she planned the whole thing is a conspiracy theory. A friend s mother referred her to the advertisement for the rental, so she answered it and was accepted because the landlord wanted a female tenant. 43. The allegation that a business was being carried on in the apartment is not established so cannot be the subject of a misrepresentation. On the other hand, it is a fact that Ms Byrt was adjudged a bankrupt in May I think it more likely that this fact was not disclosed to Ms Bryant as it only came to Ms Bryant s attention through a neighbour Mrs Grose who gave evidence at the March 2017 hearing. 44. So was there a positive duty on Byrt to tell the landlord she was a bankrupt? I find nothing in the facts of this case that placed an obligation on the tenant to volunteer this information. She was made a bankrupt before the tenancy started, and was in a position to pay and did pay all her rent during the tenancy. So I find no misrepresentation.

8 Should the filing fee be reimbursed? 45. As Ms Byrt has been partially successful in her claim, it is appropriate she be awarded reimbursement of the filing fee paid. Official Assignee notification 46. As a money order of $2, is made in favour of Ms Byrt, a bankrupt, the Official Assignee must be notified of the amount and nature of the award. The Official Assignee will then advise if Ms Byrt can keep the funds or if they will be dealt with as an asset in her bankruptcy. So a copy of this Order is to be sent to the Official Assignee immediately.