What was Tenancy Tribunal case 4611710 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 4611710?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4611710?

The dispute type was not classified.

Where can I read the official tribunal order for case 4611710?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9257236-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4611710 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 4611710?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4611710?

The dispute type was not classified.

Where can I read the official tribunal order for case 4611710?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9257236-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4611710 — Tenancy dispute

Order

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

Reasons

Both parties attended the hearing.
Ms Clarke and Ms Tako attended on behalf of the landlord. They say that the house is their mother’s house and that they have an enduring power of attorney for her. They say this has been in place for a few months. The name of the application has been amended to reflect this.
The landlord has applied for possession of the premises following the termination of the tenancy.
The tenant says he has posted his own application to Tenancy Services. I have made a number of enquires of Tenancy Services and I am told Tenancy Services have no record of this at the present time. This decision therefore only deals with the landlord’s application.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. Facts
There is no written tenancy agreement and neither party suggested that a fixed term tenancy is in place.
The landlord says that they want to sell the house as soon as the tenant moves out and that they have an agent waiting.
The landlord says that in March 2023 the tenant was visited by Ms Nuku and Ms Clarke. The landlord says that the tenant knew that Ms Clarke would be taking over the tenancy agreement and no work would be done on the house because Ms Nuku wanted to sell it.
The landlord says that on this occasion, in March 2023, they explained to the tenant that they wanted to give him 90 days’ notice to end the tenancy.
The landlord produced to me an original handwritten notice to terminate the tenancy that the landlord says they tried to give the tenant in March. The landlord’s position is that the tenant did not want to take it and that the tenant said no, he did not need it when the landlord had the notice in her hand.
The notice, dated 9 March 2023, says: “We are going to give you 90 days to end your tenancy at [address]. Your tenancy last day will be Thursday June 9 th 2023. We are selling Mum’s house, so will have agent coming to view + possibly buyers coming to view. You will be given 48 hr notice. Thank you SA Clarke”
The landlord says that once they discovered that the tenant was not leaving as expected they called Tenancy Services who told them to pin the notice to the door and apply for possession.
The landlord provided a photograph of the same notice dated 9 March 2023 pinned to a door. They say this was done on 15 June 2023. Ms Clarke says she would not have travelled with her mother to the premises in March unless they did not want the tenant to leave.
The tenant agrees that there was a meeting at the property but he says that at that time only a verbal agreement was made that he would move out in a couple of months - once he had been paid for work that he had done to the house. He says that he has not been paid.
The tenant says that at the meeting he asked the landlord for paperwork saying that he had to leave but the landlord said that he did not need that because “we’ve never had a problem before”.
He says that he then got a message about returning the key and he became concerned because there had been no notice.
In support of this the tenant provided the Tribunal with a series of instant messages between the landlord and tenant.
In a series of messages dated 12 June 2023 the landlord refers to collecting the key and the tenant replies that a formal 90-day notice needs to be given. The landlord replies referring to having taken a photograph. The tenant then questions this asking what 90 day notice? The landlord replies saying that the tenant had recorded their conversation and that he had said that he didn’t want a written letter. The tenant replied setting out that he does have it recorded but that at no point was a 90 day notice offered.
On 15 June the landlord replied making reference to the discussion around payment for work done and the amount of the weekly rent. The same day the tenant responded by setting out that a formal letter is needed. On 16 June the tenant messaged the landlord referring to the notice that he has found on his door and the fact the date on it is wrong.
The tenant provided two video clips showing his discovery of the notice pinned to his door. The video shows the date of “20230616”. He says he was surprised and frustrated that the dates on the notice were not correct.
There were no recordings of the conversation on 9 March 2023 (as referred to in the messages above) available to the Tribunal because the tenant said they were on a telephone that had been smashed. The law
A landlord may terminate a periodic tenancy by giving at least 90 days’ notice 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 or other disposition (section 51(2)(a), Residential Tenancies Act 1986 (RTA)).
Importantly the RTA sets out that a termination notice must be in writing, identify the premises to which it relates, specify the date by which the tenant is to vacate, set out the reasons for the termination, and be signed by the party giving notice or by their agent (section 51(3), RTA).
Section 136 RTA specifically sets out the ways in which parties can serve each other with documents and notices. As relevant it provides: (1) Where any notice or other document is required or authorised by this Act to be given to or served on a landlord or a tenant, it shall be sufficient if it is given or served in any of the following ways: (a) it may be given to or served on the landlord or the tenant personally: (b) it may be sent by post addressed to the landlord or the tenant at the address or the Post Office box given by the landlord or the tenant as an address for service in accordance with this Act: (ba) if the landlord is a company, it may be sent by post addressed to the landlord at the address of the landlord’s registered office: (c) it may be delivered to the premises to which any address for service relates, and either placed in the mailbox or attached to the door in a prominent position: (ca) if the landlord is a company, it may be delivered to the landlord’s registered office, and either placed in the mailbox or attached to the door in a prominent position: (d)it may be transmitted to the email address or facsimile number given by the landlord or the tenant as an address for service. (2) Without limiting the provisions of subsection (1), any notice or other document required or authorised by this Act to be given to or served upon any tenant may be served on a tenant: (a) at the premises to which the tenancy agreement relates, if the tenant resides at those premises, as follows: (i) by posting it addressed to the tenant at those premises; or (ii) by delivering it to those premises and either placing it in the mailbox or attaching it to the door of those premises in a prominent position; or (iii) by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or (b) at any other place of residence of the tenant, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises and who confirms that the tenant resides at the premises; or (c) at the premises to which any address for service given by the tenant relates, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or (d) by giving it to the person who ordinarily pays the rent under the tenancy agreement; or (e) by giving it to any solicitor or other agent of the tenant duly authorised by the tenant to receive the same. ...
Section 91B RTA deals with substituted service. It provides that if a notice or other document that is required to be served on a party is not served in accordance with the RTA; and the Tribunal is satisfied that all reasonable efforts have been made to serve the notice or other document on the party in accordance with the RTA then the Tribunal may direct that the notice or other document be treated as served on the party on a specified date, if steps have already been taken that have brought, or are likely to bring or to have brought, the notice or other document to the attention of the party; or dispense with the requirement for service and proceed as if the notice or other document had been served on the party in accordance with the RTA. Analysis
There are conflicting accounts of the events that took place at the meeting in March 2023 and whether the tenant expressed he did not need or want a notice from the landlord or if the landlord expressed that a written notice was not needed.
Ultimately, I do not have to decide which account of that day is correct because, on either account, I find that the tenant was not served with notice to terminate the tenancy in writing on the date set out in the written notice at the March meeting.
This is because there is no evidence that the tenant was served with a written notice on this date. He was not served in accordance with section 136, RTA or served with a written notice in any other way. There was no evidence that the notice was given to the tenant (or anyone else) or was left to amount to personal service and none of the other service methods set out in s 136, RTA or any other alternative service methods were used. On the landlord’s own evidence, the tenant did not want a written notice and the landlord took the notice away with her.
Written notice must be given to terminate a tenancy regardless of any position might be taken by the tenant. Verbal notice is not enough. Written notice was not given in March. Landlords need to follow the provisions of the RTA including giving such a notice in writing. Any agreement that is inconsistent with the RTA or that purports to exclude, modify, or restrict the operation of any such provision is of no effect (s11, RTA).
The importance of giving written notice is shown by the facts of this case. not only is written notice required by the RTA, verbal discussions can be forgotten, misconstrued or inaccurately remembered or even denied. A written notice complying with the RTA ensures that all parties have absolute clarity. It is also necessary to give written notice so that there can be no doubt that all of the information as required in s 51(3), RTA is given.
I have considered, if the landlord’s version of events is to be accepted, whether substituted service (or more accurately here, disposal of service) might be awarded in accordance with S91B, RTA. However, I find that, even on the landlord’s version of events, that not all reasonable efforts were made to serve the notice in accordance with the RTA and therefore this cannot be awarded. After the meeting the landlord could have served a written notice in any of the numerous ways set out in section 136, RTA to ensure a termination notice was validly served. However, nothing was done until June. I have considered this below.
I accept that the notice was pinned to the door on either 15 or 16 June 2023. It does not matter if it was attached on 15 or 16 June 2023 because either way the notice does not validly terminate the tenancy.
This is because the written notice, which was served by pinning it to the door, on either 15 or 16 June 2023 is dated 9 March 2023, yet it seeks to terminate the tenancy on 9 June 2023.
A tenant must be given 90 days’ notice. Here the notice that was served in June attempted to terminate the tenancy on a date prior to the notice in writing actually being served. This obviously means that 90 days’ written notice was not given when this notice was served (in fact, no notice at all was given). Conclusion
For the above reasons I find that the landlord has not established that the termination of the tenancy was valid and therefore the landlord has a right to possession of the premises as a result of the notice.
Therefore, the landlord’s application is dismissed. The Tribunal declines to award possession. Name suppression
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (s95A, RTA).
I have awarded the tenant name suppression because he has been wholly successful.
The landlord did not seek name suppression, so I do not need to consider this.

Reasons

Both parties attended the hearing.

Ms Clarke and Ms Tako attended on behalf of the landlord. They say that the house is their mother’s house and that they have an enduring power of attorney for her. They say this has been in place for a few months. The name of the application has been amended to reflect this.

The landlord has applied for possession of the premises following the termination of the tenancy.

The tenant says he has posted his own application to Tenancy Services. I have made a number of enquires of Tenancy Services and I am told Tenancy Services have no record of this at the present time. This decision therefore only deals with the landlord’s application.

The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. Facts

There is no written tenancy agreement and neither party suggested that a fixed term tenancy is in place.

The landlord says that they want to sell the house as soon as the tenant moves out and that they have an agent waiting.

The landlord says that in March 2023 the tenant was visited by Ms Nuku and Ms Clarke. The landlord says that the tenant knew that Ms Clarke would be taking over the tenancy agreement and no work would be done on the house because Ms Nuku wanted to sell it.

The landlord says that on this occasion, in March 2023, they explained to the tenant that they wanted to give him 90 days’ notice to end the tenancy.

The landlord produced to me an original handwritten notice to terminate the tenancy that the landlord says they tried to give the tenant in March. The landlord’s position is that the tenant did not want to take it and that the tenant said no, he did not need it when the landlord had the notice in her hand.

The notice, dated 9 March 2023, says: “We are going to give you 90 days to end your tenancy at [address]. Your tenancy last day will be Thursday June 9 th 2023. We are selling Mum’s house, so will have agent coming to view + possibly buyers coming to view. You will be given 48 hr notice. Thank you SA Clarke”

The landlord says that once they discovered that the tenant was not leaving as expected they called Tenancy Services who told them to pin the notice to the door and apply for possession.

The landlord provided a photograph of the same notice dated 9 March 2023 pinned to a door. They say this was done on 15 June 2023. Ms Clarke says she would not have travelled with her mother to the premises in March unless they did not want the tenant to leave.

The tenant agrees that there was a meeting at the property but he says that at that time only a verbal agreement was made that he would move out in a couple of months - once he had been paid for work that he had done to the house. He says that he has not been paid.

The tenant says that at the meeting he asked the landlord for paperwork saying that he had to leave but the landlord said that he did not need that because “we’ve never had a problem before”.

He says that he then got a message about returning the key and he became concerned because there had been no notice.

In support of this the tenant provided the Tribunal with a series of instant messages between the landlord and tenant.

In a series of messages dated 12 June 2023 the landlord refers to collecting the key and the tenant replies that a formal 90-day notice needs to be given. The landlord replies referring to having taken a photograph. The tenant then questions this asking what 90 day notice? The landlord replies saying that the tenant had recorded their conversation and that he had said that he didn’t want a written letter. The tenant replied setting out that he does have it recorded but that at no point was a 90 day notice offered.

On 15 June the landlord replied making reference to the discussion around payment for work done and the amount of the weekly rent. The same day the tenant responded by setting out that a formal letter is needed. On 16 June the tenant messaged the landlord referring to the notice that he has found on his door and the fact the date on it is wrong.

The tenant provided two video clips showing his discovery of the notice pinned to his door. The video shows the date of “20230616”. He says he was surprised and frustrated that the dates on the notice were not correct.

There were no recordings of the conversation on 9 March 2023 (as referred to in the messages above) available to the Tribunal because the tenant said they were on a telephone that had been smashed. The law

A landlord may terminate a periodic tenancy by giving at least 90 days’ notice 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 or other disposition (section 51(2)(a), Residential Tenancies Act 1986 (RTA)).

Importantly the RTA sets out that a termination notice must be in writing, identify the premises to which it relates, specify the date by which the tenant is to vacate, set out the reasons for the termination, and be signed by the party giving notice or by their agent (section 51(3), RTA).

Section 136 RTA specifically sets out the ways in which parties can serve each other with documents and notices. As relevant it provides: (1) Where any notice or other document is required or authorised by this Act to be given to or served on a landlord or a tenant, it shall be sufficient if it is given or served in any of the following ways: (a) it may be given to or served on the landlord or the tenant personally: (b) it may be sent by post addressed to the landlord or the tenant at the address or the Post Office box given by the landlord or the tenant as an address for service in accordance with this Act: (ba) if the landlord is a company, it may be sent by post addressed to the landlord at the address of the landlord’s registered office: (c) it may be delivered to the premises to which any address for service relates, and either placed in the mailbox or attached to the door in a prominent position: (ca) if the landlord is a company, it may be delivered to the landlord’s registered office, and either placed in the mailbox or attached to the door in a prominent position: (d)it may be transmitted to the email address or facsimile number given by the landlord or the tenant as an address for service. (2) Without limiting the provisions of subsection (1), any notice or other document required or authorised by this Act to be given to or served upon any tenant may be served on a tenant: (a) at the premises to which the tenancy agreement relates, if the tenant resides at those premises, as follows: (i) by posting it addressed to the tenant at those premises; or (ii) by delivering it to those premises and either placing it in the mailbox or attaching it to the door of those premises in a prominent position; or (iii) by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or (b) at any other place of residence of the tenant, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises and who confirms that the tenant resides at the premises; or (c) at the premises to which any address for service given by the tenant relates, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or (d) by giving it to the person who ordinarily pays the rent under the tenancy agreement; or (e) by giving it to any solicitor or other agent of the tenant duly authorised by the tenant to receive the same. ...

Section 91B RTA deals with substituted service. It provides that if a notice or other document that is required to be served on a party is not served in accordance with the RTA; and the Tribunal is satisfied that all reasonable efforts have been made to serve the notice or other document on the party in accordance with the RTA then the Tribunal may direct that the notice or other document be treated as served on the party on a specified date, if steps have already been taken that have brought, or are likely to bring or to have brought, the notice or other document to the attention of the party; or dispense with the requirement for service and proceed as if the notice or other document had been served on the party in accordance with the RTA. Analysis

There are conflicting accounts of the events that took place at the meeting in March 2023 and whether the tenant expressed he did not need or want a notice from the landlord or if the landlord expressed that a written notice was not needed.

Ultimately, I do not have to decide which account of that day is correct because, on either account, I find that the tenant was not served with notice to terminate the tenancy in writing on the date set out in the written notice at the March meeting.

This is because there is no evidence that the tenant was served with a written notice on this date. He was not served in accordance with section 136, RTA or served with a written notice in any other way. There was no evidence that the notice was given to the tenant (or anyone else) or was left to amount to personal service and none of the other service methods set out in s 136, RTA or any other alternative service methods were used. On the landlord’s own evidence, the tenant did not want a written notice and the landlord took the notice away with her.

Written notice must be given to terminate a tenancy regardless of any position might be taken by the tenant. Verbal notice is not enough. Written notice was not given in March. Landlords need to follow the provisions of the RTA including giving such a notice in writing. Any agreement that is inconsistent with the RTA or that purports to exclude, modify, or restrict the operation of any such provision is of no effect (s11, RTA).

The importance of giving written notice is shown by the facts of this case. not only is written notice required by the RTA, verbal discussions can be forgotten, misconstrued or inaccurately remembered or even denied. A written notice complying with the RTA ensures that all parties have absolute clarity. It is also necessary to give written notice so that there can be no doubt that all of the information as required in s 51(3), RTA is given.

I have considered, if the landlord’s version of events is to be accepted, whether substituted service (or more accurately here, disposal of service) might be awarded in accordance with S91B, RTA. However, I find that, even on the landlord’s version of events, that not all reasonable efforts were made to serve the notice in accordance with the RTA and therefore this cannot be awarded. After the meeting the landlord could have served a written notice in any of the numerous ways set out in section 136, RTA to ensure a termination notice was validly served. However, nothing was done until June. I have considered this below.

I accept that the notice was pinned to the door on either 15 or 16 June 2023. It does not matter if it was attached on 15 or 16 June 2023 because either way the notice does not validly terminate the tenancy.

This is because the written notice, which was served by pinning it to the door, on either 15 or 16 June 2023 is dated 9 March 2023, yet it seeks to terminate the tenancy on 9 June 2023.

A tenant must be given 90 days’ notice. Here the notice that was served in June attempted to terminate the tenancy on a date prior to the notice in writing actually being served. This obviously means that 90 days’ written notice was not given when this notice was served (in fact, no notice at all was given). Conclusion

For the above reasons I find that the landlord has not established that the termination of the tenancy was valid and therefore the landlord has a right to possession of the premises as a result of the notice.

Therefore, the landlord’s application is dismissed. The Tribunal declines to award possession. Name suppression

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (s95A, RTA).

I have awarded the tenant name suppression because he has been wholly successful.

The landlord did not seek name suppression, so I do not need to consider this.

Tenancy Tribunal case 4611710 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4611710 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions