What was Tenancy Tribunal case 4424576 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4424576?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4424576?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4424576?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8743109-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4424576 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4424576?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4424576?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4424576?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8743109-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4424576 — Harassment

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The Tribunal declares that the landlord was required to give written notice of an increase in the income-related rent to the tenants pursuant to the Public and Community Housing Management Act 1992, and that, without such notice, the tenants were not liable to pay a shortfall in the income-related rent.
The tenants’ application is otherwise dismissed.

Reasons

Both parties attended the hearing on 9 March 2023.
The landlord was represented by [The landlord/s representative]. The tenants, who are elderly and understandably did not attend, were represented by their son, [The tenant/s representative]. Application to the Tribunal
The tenants applied to the Tribunal on 31 October 2022, objecting to an increase in the weekly rent from $256.00 to $416.00 per week. They said the increase related to the period from October 2021 to September 2022. The increase had not been notified in accordance with section 24 of the Residential Tenancies Act 1986.
The tenants said they wanted an apology and if the landlord continued to annoy the tenants, they would claim compensation.
There were other claims, in written submissions, raising issues about the property manager’s conduct and whether this amounted to a breach of quiet enjoyment/harassment or unlawful entry. The tenants confirmed at the hearing that these matters were not pursued. [The tenant’s representative] said the tenants want an apology for the landlord’s error but, apart from a claim for the filing fee, there was no claim for compensation or refund of any overpayment.
The focus of the hearing was therefore on the rent increase which the tenants say was illegal.
Neither party suggested that the Tribunal did not have jurisdiction to hear the application and the arrangement, in my view, does not constitute an “occupation right agreement” under the Retirement Villages Act 2003 (which would be excluded from jurisdiction by section 5(1)(l) of the Residential Tenancies Act 1986). Background
The landlord is a registered community housing provider and charity. They provide social housing, predominantly to seniors, for independent living at [residence suppressed]. This is a 4-level building with 36 one-bedroom apartments.
The landlord does not provide facilities or services such as meals, laundry, or medical services, and the landlord is not registered as the operator of a retirement village.
The tenants rented a unit at [residence suppressed] from 31 December 2018. They vacated on 8 March 2023.
A notification from MSD of an increase in the income-related rent (IRR) effective from 26 October 2021 was overlooked by the landlord in August 2021. This was probably due to IT issues. In September 2022, while performing an account reconciliation, the property manager realised there was a shortfall in the rent payments from 26 October 2021 to 12 September 2022. He checked the portal which receives electronic notifications and found there had been notification of a rent increase from $256.00 to $416.00 per week.
On 23 September 2022 the property manager spoke to the tenants about the rent increase and called MSD in their presence. MSD confirmed that a notification had been sent about a rent increase starting from 27 September 2022 (consistent with a notification letter sent by MSD to the tenants dated 20 September 2022). MSD also confirmed that notice of a rent increase had been sent in August 2021, which would increase the rent to $416.00 with effect from 26 October 2021.
The property manager worked out that there was a rent shortfall of $7,520.00. The tenants were requested verbally to pay this sum. According to the property manager, the tenants said they understood and would do what they could to pay the shortfall.
At a meeting with the landlord on 5 October 2021, [The tenant’s representative] said MSD had spoken to him and confirmed the IRR increase from October 2021, but he had been told the tenants did not need to pay this as there should have been a 60-day notification. The landlord requested that the shortfall be paid.
The landlord then consulted with the Ministry of Housing and Urban Development (HUD) who agreed to pay the rent shortfall of $7,520.00 to the landlord.
The landlord says the tenants were then informed that they did not need to pay the rent shortfall. The tenants say they were told this verbally. They requested written confirmation, but this was not forthcoming, causing them ongoing anxiety. Relevant law
Part 8 of the Public and Community Housing Management Act 1992 (“the PCHMA”) is the relevant legislation, together with section 24 of the Residential Tenancies Act 1986 (the Act).
Section 93(1) of the PCHMA requires a registered community housing provider (CHP) to give written notice to the tenant of a change in the rent if the CHP is required to change the rent for the housing pursuant to sections 92 or 94.
Section 92 applies when HUD has notified the CHP of the IRR calculated for a tenant who has been referred to a CHP under section 106.
Section 94 applies when HUD notifies the CHP of an increase in the IRR due to a change in the tenant’s circumstances under section 106.
Pursuant to section 106, HUD must notify the CHP of the IRR calculated for a tenant and must update the notification following any change to the IRR. An updated notification must state whether the change in the IRR is due to a change in the tenant’s circumstances and the date of the change in circumstances.
When the rent changes, the written notice from the CHP must state the day on which the change in rent takes effect and the matters referred to in paragraphs (j) and (k) of section 13A of the Act (section 93(2)). Section 93(4) says that the notice must comply with section 24 of the Act except to the extent that section 94 provides otherwise.
Where there is an increase in the IRR due to a change in the tenant’s circumstances, section 94(1) requires that the date on which the increased IRR takes effect must be a date no earlier than 61 days after the date (as stated in HUD’s notification under section 106) that the change in circumstances occurred. The notice must be given to the tenant by the CHP at least 2 weeks before the increase takes effect (section 94(1)(c)).
The effect of these somewhat convoluted provisions is that a notice of a change in the rent by the CHP must be in writing, specify the amount of the increased rent, the day on which the increased rent becomes payable and the frequency of the rent payments. The date on which the IRR takes effect must be no earlier than 61 days after the date the change in circumstances occurred and the CHP must give the notice to the tenant at least 2 weeks before the IRR takes effect. Submissions from the parties
The tenants submitted (inter alia): • The tenants were unaware of the rent increase until September 2022. • The landlord had to give 60 days’ written notice to increase the rent, and no notice was given. • From 27 September 2022 the tenants paid the increased rent of $416.00 as notified to them by MSD on 20 September 2022. However, they objected to paying for the retrospective rent from 26 October 2021 to September 2022 as this was illegal. • The landlord did not confirm in writing that there was no need to pay the rent shortfall, despite a request.
The landlord submitted (inter alia): • The increase in IRR was a result of the annual review by MSD of the tenants’ income, not a result of a market rent increase by the landlord. • The tenants’ case was not valid because they made it clear that the tenants did not need to pay the IRR shortfall of $7,520.00. • The matter did not relate to a rent increase, and as such the requirement for 60 days’ notice did not apply. • The IRR was increased due to an increase in the tenants’ pension. However, the tenants did not comply with their obligation to pay the increased IRR. • The tenants had an obligation under their tenancy agreement to inform them immediately if their household income changed but failed to do so. • The landlord was unaware of the updated IRR in 2021 due to a problem with HUD’s computer system (which provides electronic notification of the IRR). • In December 2022 the landlord clearly told the tenants that the rent shortfall would be paid for by the government and they did not have to pay it. Analysis
There was a miscommunication between HUD and the landlord concerning the IRR increase to $416.00 with effect from 26 October 2021. The landlord was unaware of the increase and the tenants say they were too.
Although the notification from HUD was not provided, the evidence suggests the IRR increase was due to a change in the tenants’ circumstances as their superannuation payments had increased. It follows that written notice of the rent increase needed to be given by the landlord under the PCHMA following the notification from HUD.
I agree with the landlord that there was no requirement to give 60 days’ notice pursuant to section 24(1)(c) of the Act, because that provision is disapplied by section 94(5) of the PCHMA.
However, I find that the landlord was required by section 94(1) of the PCHMA to give written notice of the date when the increased IRR would take effect, and this date had to be no earlier than 61 days after the change in the tenants’ circumstances.
The Tribunal was not provided with copies of the notification from HUD, so the date of the change in circumstances is unknown. But the landlord’s failure to give written notice of the increase in the IRR must mean, in my opinion, that there was no obligation on the tenants to pay the rent increase effective from 26 October 2021. It follows that the landlord did not have legal grounds to request that the tenants pay the IRR shortfall of $7,520.00.
This was of little consequence, as things turned out, because the landlord liaised with HUD to resolve the matter and the tenants have not overpaid any rent.
The property manager gave evidence at the hearing. The landlord appears to be a well-managed charity that prides itself on the care and respect shown to its tenants. There is a code of ethics with which all its employees and workers must comply. I am not satisfied that any of the allegations about the property manager’s behaviour can be sustained and they were not pursued. Having had the benefit of hearing from this witness, I consider it more likely that the property manager conducted himself with professionalism. Filing fee and name suppression
The tenants did not seek name suppression.
The landlord requested suppression. A large part of the claims, which involved allegations of harassing behaviour by the property manager, were not pursued and it is likely, based on the evidence I heard, that they would have been dismissed.
The possible reputational damage to the landlord outweighs the public interest in this order. I exercise my discretion to grant suppression to the landlord pursuant to section 95A(4) of the Act.
I have a discretion to award the filing fee to the tenants (section 102(4)(b) of the Act). They brought an application despite the landlord informing them that they did not have to pay the rent shortfall and despite having suffered no financial loss. They made serious allegations against the property manager which would probably not have been upheld. The tenants succeeded only on the narrow ground that the landlord was not entitled to request payment of the rent shortfall.
The parties will bear their own costs.

Tenancy Tribunal case 4424576 — Harassment

At a glance

Tenancy Tribunal case 4424576 — Harassment

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions