There are three sides to any story. His, hers and, somewhere in the middle, the truth. Let's see the order as the Adjudicator will have (I hope) gotten fairly close to the truth.
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Exemplary Damages against LL re: Quiet Enjoyment and LL Right of Entry
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Tribunal Case - Illegal Entry
Originally posted by Learning View PostHey Keltro, could you post the TT order number so we can see the details?
The Reason being I am looking at further legal options with reasons below.
RE HEARING APPLICATION
1. Landlords Conduct.
I submitted undisputed evidence of the landlord's conduct which consistently failed to entertain any mediation, discussion or legal advice relevant to the Residential Tenancy Act.
However the adjudicator wrongfully refused to consider this conduct as relevant to breaching the Residential Tenancy Act dismissing it as "general conduct".
Failure to mediate, discuss or make any effort to comply with the "Residential Tenancy Act" was instead mitigated by "getting advice from the police" and wrongly included as a factor for reducing damages. Ample proof such as the landlords house rules, notices with no effect, unlawful entry, denial of services,changing locks, seizing goods was clearly reckless disregard of the Residential Tenancy Act. Relying soley on disputed "police advice" was also clear intent of disregarding the Residential Tenancy Act. N.B. I pointed out at the hearing the Police actually dispute the landlords version of events.
2. Effect on Seniors.
The Tenancy Act Section 109 requires the adjudicator to consider effect which covers the effect on seniors. Both written and oral submissions were made but were met with silence. At no time did the adjudicator in all hearings or in the order examine or consider that effect. Overseas specific requirements for seniors are included in legislation demonstrating the effect is applicable.
3. Malicious Intent.
The email submitted as evidence was a clear intent or threat. as per Section 109.
Preventing access, threat to dispose of goods within a few days was malicious as it was done just days before the Tribunal Hearing but was not addressed on that reasoning by the adjudicator. It also had a retaliatory aspect against tenant for involving the Tribunal. The adjudicator had no basis in accepting the behaviour as consistent with "any landlord". Most reasonable landlords in similar circumstances would wait a few days for directions from the court.
4. Unlawful entry factors.
The adjudicator incorrectly dismissed factors surrounding illegal entry. i.e. "The disturbance caused by and timing of the entry" and also breaches of the act after entry on the basis they were put forward in other unlawful breaches. Unfair dismissal of these factors or context therefore was reflected in the minimal award for damages.
5. Seizure of Goods
The adjudicator ruled contrary to the Residential Tenancy Act in that seizure was OK because the goods were "safely locked up" and "any landlord" entitled to take possession. Not only were the goods seized but I was denied access. The adjudicator tried to minimize the unlawful act every way possible finally ruling that the "landlord thought he was acting legally" hence it was OK and any landlord would do the same. It took a lot of legal work and expense to show the police what my rights were so the argument that the goods were only seized for a day unfair. The adjudicator failed to apply Section 33 of the residential Tenancy Act in determining exemplary damages.
6. Damage to Reputation
The order of the Tribunal is extremely damaging to my reputation as a tenant. It does not clearly show that "calling the police" was for an illegal eviction and without any cause or legal basis. A future landlord could surmise the tenant's behaviour required a trespass notice and the procedure simply was a technical fault by the landlord. My reputation has already been damaged whereby a reader of the ruling is convinced there is another "side to the story" why the police were called.
7. Wrongful Interpretation of Schedule
The adjudicator has wrongly interpreted the Schedule of Amounts for Unlawful Acts by scaling back from some hypothetical worst case scenario to the $100 awarded. That is not the intention of the schedule. The maximum amounts logically can be awarded for anything that would normally result in much higher awards if no maximum set.
On the basis of 1-7. I request a rehearing which will also serve as public interest preventing incorrect precedent being set and continued misinterpretation of the Residential Act by adjudicators.
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Originally posted by Bobsyouruncle View PostI wonder what the actual facts are.....
Yet the Adjudicator ruled "the landlord genuinely thought he could evict someone a few days before the Tribunal Hearing with a trespass notice at 2.00am in the morning."
Doesn't matter a first year law student begins by learning that ignorance of the law is not an excuse" the adjudicator phrased it as the landlord thought he could ask police for advice how to evict someone therefore it was the police's fault. The police actually deny giving the advice and the landlord produced no evidence what advice was given and by whom.
Makes an absolute nonsense. How can anyone get justice when the other party can always plead ignorance and either get away with it or have it as a mitigating factor.
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Originally posted by Keltro View PostMakes an absolute nonsense. How can anyone get justice when the other party can always plead ignorance and either get away with it or have it as a mitigating factor.
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Originally posted by Keys View PostIs that a serious question or are you being rhetorical?
I have had two experiences with the Tenancy Tribunal or the equivalent. Once as a landlord and once as a tenant. This time my conclusion was that Tenancy Services do a good job, are polite but their scope is perhaps a bit limited. At the other end the court system is an insult to intelligence. Modern technology should be making the whole process efficient and its ripe for a political party to put up a reform agenda.
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Hi Youthworker
You certainly have a case here and I would be confident based on what you have described you would be entitled to compensation + exemplary damages.
Re the maximum amount awarded I would believe that will be based across all the incidents rather than each separate event. To get exemplary damages on every single count you would have to put subsequent additional claims in.....question - have you served them with 14 day notices?
There would be two exemplary damages you could claim for though as there two separate breaches......hope that helpsFraser Wilkinson
www.managemyrental.co.nz
Wellington / Lower Hutt / Upper Hutt / Porirua
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Originally posted by youthworker01 View PostIncorrect.
Residential Tenancies Act 1986:
48(1) Landlord shall not enter premises without the permission of the tenant
Schedule 2.1(b) Premises: any land or appurtenances
Granted they are allowed for maintenance or inspections but with appropriate notice given and within suitable time frames e.g 3 monthly inspections only,
I've already been told by the Tribunal that they have breached their right of entry and our right to quiet enjoyment and advised to file on this basis.
If what you say is correct, then a landlord at any time can come on the grounds when they feel like it. When renting, we are renting the entire property not just the house.
They have most definitely breached our quiet enjoyment, every second day is excessive. Coming over when they feel like it is excessive.
When we went on a three day weekend we had my brother house sit for us. Landlords just went over and demanded to know who he was and said they have a right to know exactly who is in their house. This is one example of the harassment they have given us.
In no way, shape or form have we been anything other than exceptional tenants so it's not like we are 'undesirables' they were worried about or they wouldn't have extended our one year contract.
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