Legal Test for Exemplary Damages for Abandonment

[sandhills]

Hi all, I am wondering how many people have successfully claimed Exemplary Damages for Abandonment. I had what I thought was an open and shut case where the tenants abandoned the premises in early December, couldn't get a hearing until 20 January, was awarded vacant tenancy then. The tenants left the place full of rubbish and never came back. But apparently it "came very close" to abandonment but was deemed not to be so, simply because I did have one phone conversation with the tenant and we did discuss (but never agreed upon) a date to terminate the tenancy. That was enough for it not to be awarded.

I would be interested in whether others have had this same situation? How could one ever get abandonment proven if one phone call was had with the tenant?

NZ Property Investors urge us to claim more for exemplary damages, but how the heck do you pass the narrow tests they impose?

[PC]

Ever wonder why it's referred to as "The Kangaroo Court" by home providers?

[Glenn]

Hi all, I am wondering how many people have successfully claimed Exemplary Damages for Abandonment. I had what I thought was an open and shut case where the tenants abandoned the premises in early December, couldn't get a hearing until 20 January, was awarded vacant tenancy then. The tenants left the place full of rubbish and never came back. But apparently it "came very close" to abandonment but was deemed not to be so, simply because I did have one phone conversation with the tenant and we did discuss (but never agreed upon) a date to terminate the tenancy. That was enough for it not to be awarded.

I would be interested in whether others have had this same situation? How could one ever get abandonment proven if one phone call was had with the tenant?

NZ Property Investors urge us to claim more for exemplary damages, but how the heck do you pass the narrow tests they impose?

The issue is you should always tell the truth in court. But you can say an awful lot more without mentioning some things.
I always describe my abandonments as "this particular one was the the worst kind of abandonment"
However to be honest it is best to not even mention abandonment. You will actually get more money that way. Just say the tenant left all this crap in the flat and was in arrears at the time to this amount. Then claim the rent whilst it was being cleaned up. If it is a fixed term you will get more money awarded to you as rent than the cost of clean up. So just get on and clean up and find a new tenant then ask for the rent to the start of the new tenancy. Not claiming for things leaves them confused. They have to agree.

[sandhills]

Thanks Glenn, so normally one can claim for that lost rent too? The adjudicator seemed to imply that the maximum rent I could claim was the three weeks' notice they should have given. Unfortunately for me this all occurred just before Christmas and I had to wait until 20 January to even get back into the house to start to clean up a horrendous mess, so effectively I lost 8 weeks' rent. Tenancy services had direly warned me I could be fined big time if I went back into the property to clean up prior to my TT hearing.

[Glenn]

Thanks Glenn, so normally one can claim for that lost rent too? The adjudicator seemed to imply that the maximum rent I could claim was the three weeks' notice they should have given. Unfortunately for me this all occurred just before Christmas and I had to wait until 20 January to even get back into the house to start to clean up a horrendous mess, so effectively I lost 8 weeks' rent. Tenancy services had direly warned me I could be fined big time if I went back into the property to clean up prior to my TT hearing.

True all too true.
Once the horse has bolted you are committed. The other thing many people forget or do not know about is Tenancy Services often pass on details of conversations you have had with them to the court.
Sneaky isn't it. They never talk about that publicly but is certainly happens. So ringing the call center and spilling the beans sometimes works against you.
So yes the official process is to make your application on the basis of rent arrears and abandonment. That means you have to wait till you are granted possession then go back to do the clean up and repairs. Then make a second application for the costs post possession. If you spend ages looking at cases on line you will see very few people bother with the double hearing process.
So the issue is (until the new act is passed) is to never have an abandonment in your application. Yes three weeks rent from time of discovery is what the law states.
The reality is most landlords will apply to the tribunal on the basis of rent arrears and the tenants run as soon as they get the notice of hearing. So the abandonment occurs during the long gap between application and hearing. However every case is different. Generally three weeks rent post discovery of abandonment is less than the rent to the day of the hearing. What I am suggesting is if the rotten tenants are slipping into arrears and the landlord does not act until there is a three or four weeks arrears then the tenants communicate to you they are no longer there or that they are going tomorrow. So the question is did the tenants give notice or abandon because they did not give 21 days notice. The issue for the landlord and as the call center staff correctly indicate you are not supposed to take possession unlawfully. Under a unlawful giving of notice issue you are often better to forget the whole issue of abandonment. So each case is different and you need to judge each occasion on its merits and what you are likely to get.
ON the issue of lost rent. You are permitted to claim lost rent whilst the property is being repaired but generally not whilst it is being cleaned. The RTA is silent on post termination rent claims. I challenged the adjudicator once about this and asked why HNZ was being granted it but not me. She then backed off and said I would be granted it if I made a good case or something like that.
So despite reading the RTA forward and backwards many times and looking at multiple cases on line and appearing lots of times you will never be 100% certain what you will get in court.

[eri]

case by case

the perfect avenue

for corruption

[Glenn]

case by case

the perfect avenue

for corruption

Well may be, but surely this is why there are thousands of lawyers in the world. What is more most of them are not shaking the cherry tree in court but are doing it behind closed doors.
The law is never about a simple set of rules that one plugs in the facts and out pops a simple reasonable fair equitable ruling that both sides agree on.
Us landlords do not make our money by winning court cases.
However some of us old property managers do manage to appease our clients by saying I did everything in my power to bring home the bacon but the court decided on this occasion to let the tenant off so you now have to pay for the carpet to be cleaned and for the window to be repaired.
So hopefully we do not lose our valuable client and the rent and associated commissions start flowing again till next time.

[FJW]

Hi Sandhills

Most cases where the tenant has abandoned and owing rent arrears I am successful with exemplary damages 61(5), I usually only really get a few hundred though......

[Glenn]

Hi Sandhills

Most cases where the tenant has abandoned and owing rent arrears I am successful with exemplary damages 61(5), I usually only really get a few hundred though......

That is my point. Yes I have found exactly the same. The outcome is usually less than one weeks rent by way of damages. So surely it is better to keep quiet and say nothing. That way you will get the rent to the day of the hearing or later. The adjudicator will always ask. Have you been to the site. Is the tenant still there. Always answer truthfully. Yes I visited yesterday but did not enter the property. I could see the power meter was not turning and looking through the window I could not see anyone in occupation. I also asked the neighbours and they said they have not seen the tenant for a while.
That is not an application for abandonment it is just confirming that possession can be granted by the court today. If you had applied for abandonment in your application it would be at least six weeks since date of discovery so you have just lost yourself at least three weeks rent amounting to say $1000 to $1500. I must however admit another twist to that story. In the past (and perhaps still in place now) the department normally afford urgency to the applications for abandonment so you are likely to get a hearing quicker if you mention abandonment. Is this not the stuff of hair pulling out. How on earth are you to know how long the waiting time will be this time to get a hearing.