What was the outcome of Tenancy Tribunal case 4604030?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4604030?

Property Damage: $2,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4604030?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4604030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9511491-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4604030?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4604030?

Property Damage: $2,200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4604030?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4604030?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9511491-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 39 Waipapa Road, Hataitai, Wellington 6021 Tenancy Tribunal Case 4604030 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4604030 — net $2,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: acting to terminate without grounds	$2,200.00	acting to terminate without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,220.44
Total payable by Landlord to Tenant	$2,220.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The claims for compensation are dismissed.
Prue Craig must pay Gail Marie Mcewen $2,220.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The landlord had a representative speak on her behalf.
The tenant signed a periodic tenancy agreement in April 2022. The tenant filed an application because she was given a 90 day notice to terminate the tenancy. The last day of the tenancy was to be 26 May 2023. The tenant quickly decided to move in with a relative. She gave 28 days notice and moved out on 30 April 2023. The tenant kept an eye on trade me and drove past the unit regularly. The unit was never listed for sale on trade me. There were no real estate agent signs or advertisements. On 6 June the tenant found the unit advertised on trade me for rent for an extra $95 a week. She thinks the landlord never intended to sell the unit, and that she gave the tenant notice because she wanted to significantly increase the rent.
The tenant’s claims include exemplary damages and compensation because the decision to terminate was not fair, and because of the significant stress it placed on the tenant. The questions I have to decide are: • Did the landlord terminate the tenancy without grounds? • Should the tenant get compensation for the costs of moving and storage? • Should the tenant get general compensation?

Did the landlord terminate the tenancy without grounds?

The landlord submitted that the outside of the house was painted in January/February 2023 and the landlord decided it would be a good time to sell. She submitted that she received an offer from a friend to buy the unit for $600,000 on 17 February 2022, and this offer was accepted. The offer fell through on 31 March 2023. As evidence I have been given two hand written notes from the friend. The landlord said she then decided to put the house on the market and instructed the property manager to give the tenant notice to end the tenancy because of a sale.
The landlord gave notice on 22 February 2023 under section 51(2)(a) of the Residential Tenancies Act 1986 (RTA). This section allows a landlord to give 90 days notice to end the tenancy if “the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale of other disposition”.
The tenancy was to terminate on 26 May 2023. I have checked the form, the service of the notice and the number of days given, and it is technically a valid notice.
The tenant has brought her claim under section 60AA RTA because the landlord did not put the unit on the market at all. Under Section 60AA 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 this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The landlord submitted that she arranged for the interior to be painted after the tenant moved out. I have not been provided with any evidence about this.
After the tenant moved out the landlord had three real estate agents to give appraisals. Two were done on 1 and 2 May and I don’t have a date for the appraisal from Lowe and Co, but the landlord said this was done on 22 May. The appraisal range for Low and Co – the only one I have been provided with - was $600,000 - $650,000. The landlord submitted the amounts given were less than the landlord had been expecting. Her submission is she spoke with friends and decided it was not a good time to sell.
The landlord engaged a new property manager on 3 June 2023 and that same day the unit was listed on trade me for rent. The advertisement stated the unit was available to rent from 10 June at an increased rent. The unit was rented out and the new tenancy commenced on 1 July.
I have looked at other Tribunal decisions to see whether there is any precedent about the evidence required to prove an intention to sell. I could not find any orders where the Tribunal had relied only on appraisals. There are relevant orders including: • 4342304 – A landlord who issues notice to terminate the tenancy must provide the Tribunal with evidence to substantiate the reason given in the notice. • 4630650, 4641931 – The Tribunal found the relevant time for determining intention was when the notice was given. • 4392200, 4342979 – There is an inference that the landlord has acted unfairly if he changes his mind. The evidential burden is on the landlord to rebut this. The landlord established it had appointed a broker and had emails confirming this. An intention to sell was established. • 4473587 – There was an email from the sales agent and an appraisal and a draft sales agreement. This was sufficient evidence of an intention to sell. • 4429689 – Emails with the agent and a listing agreement for three months with the preferred agent showed an intentional to sell.
I have carefully considered the earlier decisions and the submissions made for the landlord. I am not persuaded the landlord has proved there was an intention to sell the unit when she gave the notice on 22 February 2023. I have decided this because: • There is no evidence the landlord contacted real estate agents in February when the notice was given. This is when the landlord needs to show there was an intention to sell. • The only evidence I have of an offer to buy in February is the hand written notes. There is no evidence the offer was accepted. No lawyers were involved. The friend did not give evidence as a witness in the Tribunal. The tenant submitted that the friend could have written the notes to help the landlord’s defence at the hearing. I do not find the notes prove there was an intention to sell in February. • The landlord’s submission states that she decided to sell the unit after the offer from her friend fell through. However, the notice to terminate the tenancy was given to the tenant five days after date on the handwritten offer. This inconsistency undermines the credibility of the timeline. • It does not seem credible to me that the landlord would wait until the tenant had moved out to get the three appraisals done, when this is an easy process that could have been managed in February. • It does not make sense to me that the landlord waited to get the interior painted before getting an appraisal done either, because two of the appraisals were done within two days of the tenant moving out. • While this is not evidence of an intention in February, the Lowe and Co appraisal was for the same amount or more than the landlord would have accepted from her friend in February, yet the property was not put on the market. This is no consistent with an intention to sell. • It seems more likely to me that the landlord wanted this tenancy to end and gave the tenant notice.
I find the landlord gave a notice to terminate the tenancy that she was not entitled to give. The landlord has committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The landlord must have acted intentionally when she decided to give the notice to terminate because of a sale. The effect on the tenant was stress, inconvenience, all the hassle of an additional move, and the costs of moving only a year after she moved in. It is in tenants’ interests that they can stay long term in their homes and there is public interest that landlords are penalised when they breach the RTA. I allow exemplary damages in the amount of $2200. This is at the lower end of the scale because I am not aware of any similar orders against the landlord.

Should the tenant get compensation for the costs of moving and storage?

The tenant has claimed compensation for the costs of moving and storage. The tenant looked for houses when she was given notice but decided it was a bad time to find rentals in that area. She moved in with her cousin, which is a temporary arrangement. As a result, she has had to store most of her belongings, and she is paying a monthly storage cost. I am not persuaded I should allow compensation. I find these are the usual costs associated with moving and I find the tenant would have paid these anyway, whenever she moved. The notice given by the landlord meant she had to pay them sooner than she expected, but she is a tenant rather than an owner, and moving costs are inevitable. I also note that living with her cousin and paying storage costs was a choice she made. This claim is dismissed.

Should the tenant get general compensation?

The tenant claimed $5000 for general health and wellbeing. She provided detailed medical information which showed she suffered a stroke after she moved out. The tenant is sure that the stress of moving and finding out the landlord had not sold after all contributed to her poor health. I am not persuaded by this submission. While I acknowledge the move was unexpected and very stressful for the tenant, there is no evidence it was the landlord’s behaviour that caused the poor health. I further note that I consider the order for exemplary damages to properly address the landlord’s breach. This claim is dismissed. Other matters
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee. I note that suppression was discussed in the hearing and the tenant was adamant she wants this order published with both names on it.

Claims and awards in Tenancy Tribunal application 4604030 — net $2,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: acting to terminate without grounds	$2,200.00	acting to terminate without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,220.44
Total payable by Landlord to Tenant	$2,220.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The claims for compensation are dismissed.
Prue Craig must pay Gail Marie Mcewen $2,220.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The landlord had a representative speak on her behalf.
The tenant signed a periodic tenancy agreement in April 2022. The tenant filed an application because she was given a 90 day notice to terminate the tenancy. The last day of the tenancy was to be 26 May 2023. The tenant quickly decided to move in with a relative. She gave 28 days notice and moved out on 30 April 2023. The tenant kept an eye on trade me and drove past the unit regularly. The unit was never listed for sale on trade me. There were no real estate agent signs or advertisements. On 6 June the tenant found the unit advertised on trade me for rent for an extra $95 a week. She thinks the landlord never intended to sell the unit, and that she gave the tenant notice because she wanted to significantly increase the rent.
The tenant’s claims include exemplary damages and compensation because the decision to terminate was not fair, and because of the significant stress it placed on the tenant. The questions I have to decide are: • Did the landlord terminate the tenancy without grounds? • Should the tenant get compensation for the costs of moving and storage? • Should the tenant get general compensation?

Did the landlord terminate the tenancy without grounds?

The landlord submitted that the outside of the house was painted in January/February 2023 and the landlord decided it would be a good time to sell. She submitted that she received an offer from a friend to buy the unit for $600,000 on 17 February 2022, and this offer was accepted. The offer fell through on 31 March 2023. As evidence I have been given two hand written notes from the friend. The landlord said she then decided to put the house on the market and instructed the property manager to give the tenant notice to end the tenancy because of a sale.
The landlord gave notice on 22 February 2023 under section 51(2)(a) of the Residential Tenancies Act 1986 (RTA). This section allows a landlord to give 90 days notice to end the tenancy if “the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale of other disposition”.
The tenancy was to terminate on 26 May 2023. I have checked the form, the service of the notice and the number of days given, and it is technically a valid notice.
The tenant has brought her claim under section 60AA RTA because the landlord did not put the unit on the market at all. Under Section 60AA 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 this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The landlord submitted that she arranged for the interior to be painted after the tenant moved out. I have not been provided with any evidence about this.
After the tenant moved out the landlord had three real estate agents to give appraisals. Two were done on 1 and 2 May and I don’t have a date for the appraisal from Lowe and Co, but the landlord said this was done on 22 May. The appraisal range for Low and Co – the only one I have been provided with - was $600,000 - $650,000. The landlord submitted the amounts given were less than the landlord had been expecting. Her submission is she spoke with friends and decided it was not a good time to sell.
The landlord engaged a new property manager on 3 June 2023 and that same day the unit was listed on trade me for rent. The advertisement stated the unit was available to rent from 10 June at an increased rent. The unit was rented out and the new tenancy commenced on 1 July.
I have looked at other Tribunal decisions to see whether there is any precedent about the evidence required to prove an intention to sell. I could not find any orders where the Tribunal had relied only on appraisals. There are relevant orders including: • 4342304 – A landlord who issues notice to terminate the tenancy must provide the Tribunal with evidence to substantiate the reason given in the notice. • 4630650, 4641931 – The Tribunal found the relevant time for determining intention was when the notice was given. • 4392200, 4342979 – There is an inference that the landlord has acted unfairly if he changes his mind. The evidential burden is on the landlord to rebut this. The landlord established it had appointed a broker and had emails confirming this. An intention to sell was established. • 4473587 – There was an email from the sales agent and an appraisal and a draft sales agreement. This was sufficient evidence of an intention to sell. • 4429689 – Emails with the agent and a listing agreement for three months with the preferred agent showed an intentional to sell.
I have carefully considered the earlier decisions and the submissions made for the landlord. I am not persuaded the landlord has proved there was an intention to sell the unit when she gave the notice on 22 February 2023. I have decided this because: • There is no evidence the landlord contacted real estate agents in February when the notice was given. This is when the landlord needs to show there was an intention to sell. • The only evidence I have of an offer to buy in February is the hand written notes. There is no evidence the offer was accepted. No lawyers were involved. The friend did not give evidence as a witness in the Tribunal. The tenant submitted that the friend could have written the notes to help the landlord’s defence at the hearing. I do not find the notes prove there was an intention to sell in February. • The landlord’s submission states that she decided to sell the unit after the offer from her friend fell through. However, the notice to terminate the tenancy was given to the tenant five days after date on the handwritten offer. This inconsistency undermines the credibility of the timeline. • It does not seem credible to me that the landlord would wait until the tenant had moved out to get the three appraisals done, when this is an easy process that could have been managed in February. • It does not make sense to me that the landlord waited to get the interior painted before getting an appraisal done either, because two of the appraisals were done within two days of the tenant moving out. • While this is not evidence of an intention in February, the Lowe and Co appraisal was for the same amount or more than the landlord would have accepted from her friend in February, yet the property was not put on the market. This is no consistent with an intention to sell. • It seems more likely to me that the landlord wanted this tenancy to end and gave the tenant notice.
I find the landlord gave a notice to terminate the tenancy that she was not entitled to give. The landlord has committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The landlord must have acted intentionally when she decided to give the notice to terminate because of a sale. The effect on the tenant was stress, inconvenience, all the hassle of an additional move, and the costs of moving only a year after she moved in. It is in tenants’ interests that they can stay long term in their homes and there is public interest that landlords are penalised when they breach the RTA. I allow exemplary damages in the amount of $2200. This is at the lower end of the scale because I am not aware of any similar orders against the landlord.

Should the tenant get compensation for the costs of moving and storage?

The tenant has claimed compensation for the costs of moving and storage. The tenant looked for houses when she was given notice but decided it was a bad time to find rentals in that area. She moved in with her cousin, which is a temporary arrangement. As a result, she has had to store most of her belongings, and she is paying a monthly storage cost. I am not persuaded I should allow compensation. I find these are the usual costs associated with moving and I find the tenant would have paid these anyway, whenever she moved. The notice given by the landlord meant she had to pay them sooner than she expected, but she is a tenant rather than an owner, and moving costs are inevitable. I also note that living with her cousin and paying storage costs was a choice she made. This claim is dismissed.

Should the tenant get general compensation?

The tenant claimed $5000 for general health and wellbeing. She provided detailed medical information which showed she suffered a stroke after she moved out. The tenant is sure that the stress of moving and finding out the landlord had not sold after all contributed to her poor health. I am not persuaded by this submission. While I acknowledge the move was unexpected and very stressful for the tenant, there is no evidence it was the landlord’s behaviour that caused the poor health. I further note that I consider the order for exemplary damages to properly address the landlord’s breach. This claim is dismissed. Other matters
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee. I note that suppression was discussed in the hearing and the tenant was adamant she wants this order published with both names on it.

Tenancy Tribunal case 4604030 — Exemplary damages at Unit/Flat 2, 39 Waipapa Road, Hataitai, Wellington 6021

At a glance

Tenancy Tribunal case 4604030 — Exemplary damages at Unit/Flat 2, 39 Waipapa Road, Hataitai, Wellington 6021

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without grounds?

Should the tenant get compensation for the costs of moving and storage?

Should the tenant get general compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord terminate the tenancy without grounds?

Should the tenant get compensation for the costs of moving and storage?

Should the tenant get general compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions