What was Tenancy Tribunal case 4480186 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 4480186?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4480186?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4480186?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8658763-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4480186 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 4480186?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4480186?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4480186?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8658763-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4480186 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The tenancy in question was at [Tenancy address suppressed] (“the premises”). The premises consist of a small 2-bedroom standalone house.
The tenancy commenced on 28 July 2021 and ended on 5 November 2022.
In any claim brought before the Tribunal, the onus or “job” of proving any matter falls on the party bringing the claim. If the claim is brought by the tenant, then the burden or job of proving the claim falls on the tenant. If the claim is brought by the landlord, then similarly, the burden of proving the claim falls on the landlord.
In this case the job of proving the claim is on the tenant.
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities”. The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.
The tenant claims that the landlord has breached their obligations under section 60AA Residential Tenancies Act 1986 (“RTA”).
Under Section 60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A RTA.
The landlord gave the tenant 63 days’ notice of termination of the tenancy in a notice dated 24 August 2022.
The parties subsequently mutually agreed to extend the notice period so that the tenancy would end on 5 November 2022.
The tenants left the premises on 5 November 2022.
The tenants say that they subsequently became aware that the landlord had not moved back into the premises as their permanent place of residence.
The tenants provided evidence of the landlord having rented the premises out on [accommodation website] over the Christmas and New Year period of 2022. The tenant discovered online reviews of the premises from [accommodation website] guests. Copies of those reviews were recorded by the tenant on 18 January 2023.
The tenant provided a letter from an unnamed resident of the street noting that the resident had noticed more cars in the street “now that [Tenancy address suppressed] has been added to [accommodation website] in the last three months” and further that they had noticed many different cars in the driveway over the last few months.
It should be noted that whilst the Tribunal is not governed by the strict rules of evidence, the weight that the Tribunal may put on any evidence may depend on whether the party is in court and available to be cross examined. I place reduced weight on the evidence of this neighbour.
The landlord says that she moved back into the premises on 6 November 2022 and that the premises remained her principal place of residence through until 12 February 2023.
In evidence, the landlord provided: ▪ Insurance policy documents from [insurance company] showing the change of use from “tenant resident” to “landlord permanent resident” dated 6 November 2022. ▪ Correspondence from named residents of [Tenancy address suppressed] confirming that the landlord had been a permanent resident from 6 November 2022 to 12 February 2023 (I refer to my previous comments regarding the weight given written evidence). ▪ Letter from the cleaner for the landlord at her [town] property, confirming that the landlord had moved out of that property.
The landlord said that the premises had been let out on [accommodation website] for the periods; • 19-21 December 2022 • 23-26 December • 29-31 December • 5-8 January 29023 • 14-25 January
The landlord says that she does not dispute that the premises had been let as holiday accommodation, but that it was only for a short period whilst the landlord was herself away on holiday. The landlord says that she was away on holiday from 24 December 2022 to 7 January 2023 and then again from 25 January 2023 to 31 January 2023.
The landlord says that the premises were her permanent place of residence from 6 November 2022 until 12 February 2023, a total of 98 days. Analysis.
Section 51 RTA is concerned with minimum periods of notice that have to be given by landlords and tenants in order to terminate a periodic tenancy when no breach of the provisions of the tenancy agreement or the Act is alleged.
Subsection (1) sets out three circumstances in which a landlord may terminate a periodic tenancy by giving at least 63 days’ notice.
In this matter, the notice was based on s.51(1)(a) RTA, in that the landlord required the premises as her “principal place of residence”. The phrase is not defined in the Act, but in Arnold v Vodonvich North Shore TT 213/93, 2 July 1993, the Tribunal held that “occupation” (the word used in the section before its amendment in 2010) must mean at least to live in and use the property as a place of residence. The Tribunal considered that it would be contrary to the spirit of the Act if a landlord, wishing to take a holiday or spend a few days in the premises, could serve 42 days’ (now 63 days’) notice to terminate a legitimate tenancy.
The Amendment Act provided further clarification by requiring that the owner for family member, must require the premises as a principal place of residence for at least 90 days.
The test to be applied under s 5(1)(n) RTA, where the issue of what is a principal place of residence is also referred to, is not whether the premises are the principal place of residence of the landlord or owner (or the landlord’s or owner’s family), but instead turns on the principal use of the premises during that occupation.
The premises must continue to be used predominantly as a residence by the landlord or owner or their family. In Musson v Dobrisek DC Lower Hutt CIV- 2006-032-36, 5 May 2006, the exclusion was held not to apply where the landlord occupied only one of nine bedrooms in the premises and shared common areas.
The onus or job of proving that the landlord was not using the premises as a principal place of residence during the relevant period, falls on the tenant. Despite that onus, I find that the landlord has proved that the premises were predominantly used by her during the relevant period as a place of residence.
I do not consider that letting a property out for some of the 90-day period will result in the premises not being used “predominantly” as a residence. Clearly, the matter will be fact dependant in each case. In this matter, I prefer the evidence of the landlord as to the days during which the landlord was on holiday herself and let the premises out as a means of obtaining an income from the property. Further, while the landlord was at the premises, the landlord and her family or guests were the only occupants.
For those reasons, I dismiss the application.
Both parties have applied for name suppression. The landlord has been wholly successful and suppression of the landlord details is ordered. The tenant has not been wholly or substantially successful and their application for name suppression is dismissed.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The tenancy in question was at [Tenancy address suppressed] (“the premises”). The premises consist of a small 2-bedroom standalone house.
The tenancy commenced on 28 July 2021 and ended on 5 November 2022.
In any claim brought before the Tribunal, the onus or “job” of proving any matter falls on the party bringing the claim. If the claim is brought by the tenant, then the burden or job of proving the claim falls on the tenant. If the claim is brought by the landlord, then similarly, the burden of proving the claim falls on the landlord.
In this case the job of proving the claim is on the tenant.
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities”. The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.
The tenant claims that the landlord has breached their obligations under section 60AA Residential Tenancies Act 1986 (“RTA”).
Under Section 60AA RTA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A RTA.
The landlord gave the tenant 63 days’ notice of termination of the tenancy in a notice dated 24 August 2022.
The parties subsequently mutually agreed to extend the notice period so that the tenancy would end on 5 November 2022.
The tenants left the premises on 5 November 2022.
The tenants say that they subsequently became aware that the landlord had not moved back into the premises as their permanent place of residence.
The tenants provided evidence of the landlord having rented the premises out on [accommodation website] over the Christmas and New Year period of 2022. The tenant discovered online reviews of the premises from [accommodation website] guests. Copies of those reviews were recorded by the tenant on 18 January 2023.
The tenant provided a letter from an unnamed resident of the street noting that the resident had noticed more cars in the street “now that [Tenancy address suppressed] has been added to [accommodation website] in the last three months” and further that they had noticed many different cars in the driveway over the last few months.
It should be noted that whilst the Tribunal is not governed by the strict rules of evidence, the weight that the Tribunal may put on any evidence may depend on whether the party is in court and available to be cross examined. I place reduced weight on the evidence of this neighbour.
The landlord says that she moved back into the premises on 6 November 2022 and that the premises remained her principal place of residence through until 12 February 2023.
In evidence, the landlord provided: ▪ Insurance policy documents from [insurance company] showing the change of use from “tenant resident” to “landlord permanent resident” dated 6 November 2022. ▪ Correspondence from named residents of [Tenancy address suppressed] confirming that the landlord had been a permanent resident from 6 November 2022 to 12 February 2023 (I refer to my previous comments regarding the weight given written evidence). ▪ Letter from the cleaner for the landlord at her [town] property, confirming that the landlord had moved out of that property.
The landlord said that the premises had been let out on [accommodation website] for the periods; • 19-21 December 2022 • 23-26 December • 29-31 December • 5-8 January 29023 • 14-25 January
The landlord says that she does not dispute that the premises had been let as holiday accommodation, but that it was only for a short period whilst the landlord was herself away on holiday. The landlord says that she was away on holiday from 24 December 2022 to 7 January 2023 and then again from 25 January 2023 to 31 January 2023.
The landlord says that the premises were her permanent place of residence from 6 November 2022 until 12 February 2023, a total of 98 days. Analysis.
Section 51 RTA is concerned with minimum periods of notice that have to be given by landlords and tenants in order to terminate a periodic tenancy when no breach of the provisions of the tenancy agreement or the Act is alleged.
Subsection (1) sets out three circumstances in which a landlord may terminate a periodic tenancy by giving at least 63 days’ notice.
In this matter, the notice was based on s.51(1)(a) RTA, in that the landlord required the premises as her “principal place of residence”. The phrase is not defined in the Act, but in Arnold v Vodonvich North Shore TT 213/93, 2 July 1993, the Tribunal held that “occupation” (the word used in the section before its amendment in 2010) must mean at least to live in and use the property as a place of residence. The Tribunal considered that it would be contrary to the spirit of the Act if a landlord, wishing to take a holiday or spend a few days in the premises, could serve 42 days’ (now 63 days’) notice to terminate a legitimate tenancy.
The Amendment Act provided further clarification by requiring that the owner for family member, must require the premises as a principal place of residence for at least 90 days.
The test to be applied under s 5(1)(n) RTA, where the issue of what is a principal place of residence is also referred to, is not whether the premises are the principal place of residence of the landlord or owner (or the landlord’s or owner’s family), but instead turns on the principal use of the premises during that occupation.
The premises must continue to be used predominantly as a residence by the landlord or owner or their family. In Musson v Dobrisek DC Lower Hutt CIV- 2006-032-36, 5 May 2006, the exclusion was held not to apply where the landlord occupied only one of nine bedrooms in the premises and shared common areas.
The onus or job of proving that the landlord was not using the premises as a principal place of residence during the relevant period, falls on the tenant. Despite that onus, I find that the landlord has proved that the premises were predominantly used by her during the relevant period as a place of residence.
I do not consider that letting a property out for some of the 90-day period will result in the premises not being used “predominantly” as a residence. Clearly, the matter will be fact dependant in each case. In this matter, I prefer the evidence of the landlord as to the days during which the landlord was on holiday herself and let the premises out as a means of obtaining an income from the property. Further, while the landlord was at the premises, the landlord and her family or guests were the only occupants.
For those reasons, I dismiss the application.
Both parties have applied for name suppression. The landlord has been wholly successful and suppression of the landlord details is ordered. The tenant has not been wholly or substantially successful and their application for name suppression is dismissed.

Tenancy Tribunal case 4480186 — Exemplary damages

At a glance

Tenancy Tribunal case 4480186 — Exemplary damages

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