Emotional harm award to tenant after power and water cut off
A North Shore landlord has to pay a tenant $4,000 for emotional harm, despite claiming the Tenancy Tribunal did not have jurisdiction to hear any claims because the tenant was a boarder.
Monday, December 11th 2023, 9:24AM
by Sally Lindsay
A row erupted between the tenant and landlord, who have name suppression, over the fixing of a bedroom door at the Hillcrest rental.
All was going well between the tenant and landlord, who lived in her own home next door. They already knew each other and were on friendly terms, until the tenant’s partner destroyed a bedroom door and its frame during a domestic dispute at the four-bedroom house.
Mortified, the tenant decided to get the damage repaired before the landlord returned from a month-long overseas holiday. That plan went terribly wrong.
As the landlord and her husband passed the rental after returning from their holiday, they heard construction noises. They found a builder repairing the unreported damage.
Extremely upset and outraged, the landlord sent the builder packing. Subsequently, the landlord and tenant argued and completely fell out. The tenant was initially contrite, but subsequent events overshadowed that.
Shortly after, the tenant gave two weeks’ notice to end the tenancy. Before she moved out, police contacted her because her domestic violence alert alarm had been activated. She went home to discover the premises had no power or water. The loss of power triggered the domestic violence alarm.
The tenant and her son spent a couple of nights at her mother’s while her partner got the power and water going again after discovering they had been turned off.
After complaining to police a trespass notice was issued against the landlord.
A few days later, the tenant lost hot water again and discovered the cylinder fuse had been removed.
A heated argument started after the tenant confronted the landlord.
Soon after, the landlord texted the tenant: “Your board arrangement has been terminated and you are requested to vacate the premises with your belongings immediately. This is due to your verbal and physical threats to do further damage to the property.”
The tenant responded by text: “I don’t accept that notice sorry, as there were no threats made...”.
The landlord and her husband told the tribunal that just before the notice was given, the tenant threatened to “smash” them. They say she yelled and threatened them. She was “almost drug-infused".
The tenant accepts that during the altercation she said, “turn my f****** power on” and “f*** you” as she stormed off, but denies she says anything else more threatening.
Subsequently 16 claims of landlord breaches were filed at the tribunal by the tenant, while the landlord claimed rent arrears, repairs for the damaged door and replacement of a vanity plus general damages due to the tenant’s alleged “duress and threats”.
The general damages claim was dismissed while the tenant has to pay $2,672 to the landlord for the other claims.
When the tenant moved into the property she paid $660 a week in rent. No written agreement was made, with the landlord believing it was a “boarding type” situation.
At the tribunal hearing, the landlord claimed the Residential Tenancies Act 1986 did not apply to the tenancy because she was living at the premises and the arrangement was a boarding one.
The landlord claimed she had reserved a workshop-type space that was part of the house to themselves. However, adjudicator R Kee found while the space was within the envelope of the house, it was separate from the premises.
She also claimed she shared the premises’ kitchen, bathroom and living areas with the tenant and could go into the premises at will.
Kee rejected that claim. “It was simply not part of the agreement, nor would it be acceptable for the landlord to just wander into the premises.”
After outlining the tribunal’s legal jurisdiction, Kee says the RTA did apply to the parties.
The $4,000 emotional harm award was made when the tenant told the tribunal she suffered significantly as a result of the landlord’s treatment of her and was hospitalised with high blood pressure because of the impact of the events on her stress levels.
She says her mental health was fragile already and she was also dealing with the effects the domestic violence situation at the time.
When deciding on the amount to award for emotional harm, Kee says the effect on the tenant was significant – “worry, stress, frustration, anxiety, humiliation, and insecurity”. He considered a tribunal decision, which set out bands for emotional harm. Under the bands, the case is at “the upper end of the scale and an award of more than $3,000 is appropriate”. An award of $4,000 was made.
The landlord was also ordered to pay the tenant $2,164 for unlawful notice and harassment. Kee says the notice to the tenant was retaliatory, especially when the landlord knew she was not entitled to give it. “Attempting to end a tenancy immediately is a fundamental breach. It is a repudiation of the contract. It is an attempt to deprive the tenant of their right to occupation of their home forthwith.”
She also had to pay $187.50 in exemplary damages for not having a written tenancy agreement, $100 in exemplary damages for unlawfully entering the property, $900 for interfering with the water and power, despite denying it and not offering any alternative theory as to who could have done it, $188.57 for two days without utilities and $18 for the hot water cylinder fuse.
As the landlord and tenant had fallen into acrimonious dispute, particularly after the power and water were cut off, Kee says the landlord had a motive, the opportunity and knowledge of the premises to carry out interference to the power and water. “The public interest favours orders to punish and deter this landlord and others from committing such flagrant breaches of their duties.”
Kee says at the root of the fallout in this case, was the landlord’s failure to engage with the RTA. “It is in the public interest that landlords fully accept their landlord responsibilities. “The landlord is an intelligent and decent person. It is unlikely this situation will recur given the tribunal’s deterrent orders. If the landlord were to come before the tribunal again, the tribunal itself still has the landlord’s name and the tenancy address and non-publication is unlikely to be granted again.”
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