What was Tenancy Tribunal case 4549061 about?

The tribunal order states: Accommodation Management Limited t/[The landlord/s] is

How much money was awarded in case 4549061?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4549061?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4549061?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9668870-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4549061 about?

The tribunal order states: Accommodation Management Limited t/[The landlord/s] is

How much money was awarded in case 4549061?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4549061?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Harassment, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 4549061?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9668870-Tribunal_Order.pdf.

Room 111, 187 Gillies Avenue, Epsom, Auckland 1023, Tenancy Tribunal Case 4549061 — 14-day notice

Tenantcheck Insights

Reasons

Both parties attended the hearings on 30 May, 31 August, 30 October and 17 November 2023. The landlord is represented by counsel.

The tenant’s boarding house tenancy is longstanding, having commenced on 1 June 2011.

On 16 March 2023, the tenant applied under application number 4526892 for: “exemplary damages in relation to in relation to all matters to which the tenant brings to the attention of the Tenancy Tribunal by way of seeking orders against the landlord. This application is just one of many applications that the tenant has been required to file over a few years in order for the Tenancy Tribunal to direct this incompetent landlord to meet its legal obligations.” “1) An order declaring a "28 day notice to vacate the premises" dated: 10 March 2023, to be unlawful and invalid 2) An order declaring a "28 day notice to vacate the premises", dated: 10 March 2023, issued by the landlord, to be a retaliatory act by the landlord, against the tenant. 3) Orders requiring the landlord to repair and/or replace a number of items of equipment & hardware, that have been unusable for many months, that relate to health & hygiene, and/or safety of tenants 4) Orders requiring the landlord to carry out all necessary work in the grounds at at premises to ensure that the grounds are safe for tenants & visitors. 5) Orders requiring the landlord to carry out repairs, and/or replacement to all waterproofing and drainage”

On 11 April 2023, the tenant further applied under application number 4547230 for: “exemplary damages in relation to age matters to which the tenant brings to the attention of the Tenancy Tribunal by way of seeking orders against the landlord.” “1) An order declaring that the landlord has breached the "Quiet Enjoyment" of the tenancy by way of sending a "threatening letter" to the tenant, dated: 06 April 2023. Intentionally worded to threaten, harrass, intimidate and scare the tenant, in an effort to force the tenant to withdraw the tenants current application to the Tenancy Tribunal, dated: 16 March 2023, seeking an order to declare a "28 day notice to vacate the premises" dated: 10 March 2023, to be a retaliatory act by the landlord.” “2) An order to enforce a "14 day notice - breach of responsibilities by the landlord" dated: 21 February 2023, and orders to remedy all of the issues referred to in that notice.”

On 19 October 2023, the tenant further applied under application number 4717689 for: “exemplary damages in relation to the "Retaliatory and unlawful" - "28 day notice to vacate the premises" issued by the landlord. The tenant seeks exemplary damages in relation to all other matters brought to the attention of the Tenancy Tribunal during these proceedings. “1) An order declaring a "28 day notice to vacate the premises" dated: 17 October 2023, to be unlawful and invalid. 2) An order declaring a "28 day notice to vacate the premises" dated : 17 October 2023, issued by the landlord, to be a retaliatory act by the landlord, against the tenant.”

On 13 April 2023, the landlord applied under application 4549061 for possession of the premises occupied by the tenant after issuing a 28 day notice dated 10 March 2023 and compensation due to the tenant failing to vacate the premises after the expiry of the notice.

The landlord’s application for compensation was later abandoned during the hearings, leaving behind only the issue of whether the landlord is entitled to an order possession after the tenancy had ended by 28 days’ notice.

A second 28 days’ notice has been issued by the landlord, this time dated 17 October 2023 for the boarding house tenancy to end on 16 November 2023.

Counsel for the landlord advised that the landlord’s 10 March 2023 notice is effectively superseded by the 17 October 2023 notice which ultimately expired on 16 November 2023 on which an order for possession is presently sought.

The tenant filed extensive documentation and submissions in support of the above applications filed herein.

The crux of the tenant’s multiple applications and submissions filed herein are directed towards challenging the two 28-day notices issued by the landlord on grounds that they are retaliatory.

It is accepted by both parties that substantial repairs and work need to be undertaken by the landlord to be maintained so that the premises are safe, sanitary, and comfortable to live in.

What is strenuously disputed by the tenant is the method which the remediation work is required to be undertaken and whether it was necessary to decant the entire or part of the boarding house in which the tenant has been residing.

The Tribunal’s jurisdiction to determine the issues brought about by the parties is grounded on Part 2A of the Residential Tenancies Act 1986, under sections 66A through 66Y, which only apply to boarding house tenancies.

In dealing with the myriad of matters raised by the tenant, the Tribunal must not lose sight of the forest for the trees.

The material issue before me are whether the landlord is entitled to an order for possession after having given the tenant notice terminating the tenancy and the tenant having not quit the premises within the period specified in the notice.

Section 66Y Residential Tenancies Act 1986 (‘RTA’) states that a landlord may apply to the Tribunal for a possession order if— (a) the landlord has given the tenant notice under section 66U and the tenant has not quit the premises within the period specified in the notice

Section 66U(1)(d) RTA states that a landlord of a boarding house may terminate a boarding house tenancy on 28 days’ notice; no reason is required to be given by the landlord. Subsection (2) of 66U requires the landlord’s notice to be in writing.

The ability of a boarding house landlord to terminate a boarding house tenancy without giving any reason (‘no-cause termination’) is preserved despite Parliament having abolished no cause terminations in non-boarding house residential tenancies effective from February 2021.

For instance, a landlord may only issue a 90-day notice to terminate a periodic tenancy under section 51(2)(f) RTA if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken.

A landlord may also issue a 63 days’ notice to terminate a periodic tenancy under section 51(1)(a) RTA where the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.

But as of 11 February 2021, a landlord can no longer issue 90 day notice to terminate periodic tenancies without cause.

Parliament chose not to make a similar legislative change to boarding house tenancies to remove a boarding house landlord’s ability to issue no-cause termination notices.

I consider that this recognises and reinforces a boarding house landlord’s right to terminate boarding house tenancies without cause primarily because of the general transient nature of such tenancies.

That said, I acknowledge that this tenant had been on the premises for over 10 years. The longstanding nature of his boarding house tenancy however is irrelevant to the issue of whether the boarding house landlord can end the boarding house tenancy by issuance of a 28-day written notice under section 66U(1)(d) RTA.

The answer remains in the affirmative in that the boarding house landlord may at any time terminate a boarding house tenancy under 66U(1)(d) RTA without giving any reason or relying on any particular ground to end the boarding house tenancy.

In Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165, Goddard J held at [31] that the RTA does not allow a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days.

Boarding house tenancies under Part 2A of the RTA are therefore only periodic in nature and as the law stands, a landlord can end them without cause provided at least 28 days’ written notice has been given.

As the law stands, there is simply no security of rental tenure when it comes to boarding house tenancies; there is no expectation that a tenant can remain at the premises for as long as he or she wishes even though the tenant is not in breach of any of his obligations, pays rent on time and otherwise exemplary in conduct.

The only proviso that impinges on the landlord’s right to terminate a boarding house tenancy without cause is set out under section 66U(4) as follows: To avoid doubt, section 54 (which provides that the Tribunal may order that notice by a landlord is of no effect in certain circumstances) applies to boarding house tenancies.

Section 54 RTA states: (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

For a notice to be declared retaliatory under s 54(1) RTA, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.

The material inquiry under s 54(1) is directed towards the landlord’s actual motivation in ending the tenancy at the time that it was issued.

The inquiry is NOT directed towards the various disagreements that may exist between the parties at the material time.

Consequently, even though a tenant may have been exercising a right under the tenancy agreement or the RTA against the landlord, or have made a valid and reasonable complaint against the landlord for purported breach of the tenancy agreement or of the RTA, the Tribunal can only declare the landlord’s notice to be retaliatory if it considers, on the balance of probabilities, that the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord, rather than some other reason.

Having heard from the parties and perused the documentation filed by both parties, I find that the landlord has issued its notice to terminate the boarding house tenancy because the landlord wanted to have extensive refurbishment and repairs of the premises are to be carried out, and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken.

Senior Enforcement Officer of Auckland Council Brett Playle writes in his email of 2 June 2023 that Council has received a complaint about dampness, mould and maintenance issues at the premises. Following a site inspection carried out by Council’s environmental health officers, these issues were identified: a. Room Rae 105 on the 3 rd floor has been badly affected by flooding and moisture ingress. The carpet is now growing considerable amounts of white and black mould. The window sill has pooled water and putty has chipped. The curtains have mildew and mould on them. The room has an unhealthy musty odour. b. There are areas of carpet in the hallway in the 1 st and 2 nd floors that are damp and have evidence of moisture damage. c. There are two bedrooms on the 1 st floor where the carpet has had moisture damage. d. At the end of the hallways on the 1 st , 2 nd and .rd floors near the windows, there is damp carpet which is possibly due to moisture ingress into the concrete wall. e. Some of the toilets on the 1 st , 2 nd and 3 rd floors are starting to have the seals perish on the foul-water pipes. f. A lot of this water damage is thought to be caused by a leak in the roof of the building. Some of the water damage on the 1 st floor has been caused by a recent burst water pipe at one of the hand basins on the 1 st floor toilets.

Council officers requested as a minimum, the landlord should remove the damp and mouldy carpets and curtains from room 105, thoroughly clean and sanitise surface in this room and aerate and dry out the room.

Council officers also recommended that priority should be given to fixing the roof leak and other leaks in the building structure so that the other maintenance issues can be completed.

While the preferred method of the landlord’s fixing of roof leaks, the building structure and other maintenance issues has been subject to intense scrutiny at the hearings before me, I consider that ultimately, the landlord/owner has autonomy to carry out repairs to its own property in the manner that the landlord/owner sees fit.

It is not for the tenant, the Tribunal nor any other party to dictate what a landlord should be doing in terms of the method of remediating the property.

The landlord has sought professional advice from builders and building inspectors on refurbishment of the premises.

The building investigation report issued by ASJ Property Consultancy’s David Heard in June 2023 concluded as follows:

0 Recommendations Due to the buildings age and poor conditions the property now requires major repair to the roof and windows together with the refurbishment of the bathroom facilities. These, together with the recent flood event to the ground floor does and will render the property uninhabitable. The evidence of well-established mould to the carpet to the top floor is a major health issue and it is imperative that the area is closed off until the mould can be safely removed and the area sanitised. The carpet to the ground floor is exhibiting the early signs of mould infestation and requires removal at the earliest opportunity, once all occupants have vacated the accommodation. It is therefore recommended due to the numerous issues identified that all occupants residing within ground and top floor of the property are decamped to allow all works to be undertaken.

The tenant vehemently disputes the conclusions reached by ASJ Property Consultancy and the landlord’s reliance on its reasons to decant the premises, including the boarding room that the tenant occupies.

While the landlord had initially thought that the middle floor 2 occupants may remain in situ while major refurbishments are carried out, counsel for the landlord advised that a decision has been since made to decant the entire building altogether, hence the issuance of the second notice to quit dated 17 October 2023.

Ultimately, I find that the landlord’s motivation for ending this boarding house tenancy is on undertaking major refurbishment of the premises and on terms and extent which the landlord have seen fit.

The tenant’s strong feelings and objections to the landlord’s proposed refurbishment works at the premises as well as his own suggestions of alternative methods of remediating the premises which do not involve the entire boarding house being decanted are of no moment.

The issue before the Tribunal is not whether there are any alternative methods of repairs being carried out that do not involve the entire boarding house being decanted. I reiterate that the method of undertaking the work remains the prerogative of the owner and the landlord.

The sole issue for consideration of the tenant’s applications couched under section 54 RTA is whether the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord when the landlord issued its 28-day notices.

On this material issue before me, I do not consider that the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord when the landlord issued 28-day notice dated 17 October 2023 for the boarding house tenancy to end on 16 November 2023.

It is my finding that the landlord’s motivation for ending this boarding house tenancy is in undertaking major refurbishment of the premises rather than the tenant’s complaints or exercising his rights under the RTA, and this effectively determines the applications filed herein.

For those reasons, the tenant’s applications for an order that the landlord’s notice of 17 October 2023 is retaliatory and exemplary damages under s section 54(2), (3) and Schedule 1A RTA must fail.

The tenant’s associated claims to require the landlord to repair and maintain are also unsuccessful and unnecessary in light of my ultimate findings that the landlord’s notice to terminate the boarding house tenancy stands.

In the circumstances, the landlord is entitled to an order for possession of the premises, pursuant to section 66Y Residential Tenancies Act 1986.

The remainder of the tenant’s claims become moot once the order is made granting possession of the premises to the landlord.

Reasons