What was Tenancy Tribunal case 4620130 about?

The tribunal order states: By way of declaration: the notice provided to terminate this tenancy was

How much money was awarded in case 4620130?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4620130?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4620130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9424104-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4620130 about?

The tribunal order states: By way of declaration: the notice provided to terminate this tenancy was

How much money was awarded in case 4620130?

Property Damage: $1,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4620130?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4620130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9424104-Tribunal_Order_Redacted.pdf.

17 Sirsi Terrace, Broadmeadows, Wellington 6035 Tenancy Tribunal Case 4620130 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4620130 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s60AA	$1,500.00	breach s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

By way of declaration: the notice provided to terminate this tenancy was unlawfully given.
RentCare Property Management Limited must pay [The tenant/s] $1,520.44 immediately in accordance with the following table:
An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

Reasons

This tenancy commenced on a short, fixed term contract from October 2022. It rolled over to a periodic tenancy in May 2023 and 12 days later Rentcare got instruction from the owner to give the tenants notice on the basis that they were going to have a family member move in, and then sell the property.
The tenants were able to secure alternative accommodation and subsequently gave their 28 days’ notice to vacate, with the tenancy ending formally on 21 June.
The owner then listed the property for rent on 26 June. The owner advised RentCare the following day that she was going to manage the next tenancy as she was only looking for a short (“3-6month”) tenancy before she listed the property for sale as had been her original intention. In contradiction, part of the blurb of the advertisement says a minimum 6-month contract is sought. The property is not as yet listed for sale.
Ms Walton for RentCare says the owner told them that her family member’s circumstances had changed which is why she advertised for tenants again. There is no documented information available from the owner other than her short email to RentCare that she was advertising the property. Ms Walton says the discussions regarding the end of the tenancy were all oral.
[The tenant/s] are distressed at this turn of events as they had very much wanted to remain in the home as long as they could. They are saving for a home of their own and to incur moving costs eight months after moving in has been stressful and has taken a toll.
They had been served with two 14-day notices during their tenancy which were subsequently withdrawn so they were suspicious of the landlord’s motivations from the start. They did think that RentCare wanted them to leave however Ms Walton says this is absolutely not the case and they were valued tenants. She says they would have helped them into another of their properties if needed and they were supportive of continuing the tenancy.
Ms Walton also notes that it had always been the owner’s intention to sell the property as she had tried in 2022 but been unable to. Therefore, she says the tenants were always going to get a termination notice at some stage, but agrees it was unfortunate how it played out. Ms Walton’s opinion is that the owner was genuine in having a family member wanting to move in and that she has not acted in an underhand way. From RentCare’s perspective, they have acted upon instruction and have not tried to mislead or deceive the tenants in any way. The law and discussion
Pursuant to section 60AA of the Residential Tenancies Act 1986 (RTA) a landlord must not give a notice to terminate the tenancy, 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.
This section was inserted into the RTA by Parliament in February 2021 1 in an effort to provide tenants with increased security of tenure and to curb the practice of landlords ending tenancies because they did not like the tenants or ending them without reason.
Section 51 sets out the reasons a landlord may terminate a periodic tenancy. It directs that the reason must be stated clearly so that a tenant knows why their tenancy is ending, and that a justified reason exists. By setting a high award of exemplary damages for breaching this section, Parliament has signalled that there should be a significant consequence for landlords who do so.
Other Tribunal decisions have held that landlords who issue notice to terminate a tenancy must provide the Tribunal with some evidence to substantiate the reason given in the notice. It will not generally be enough to discharge the burden of proof required (that it is more probable than not) to provide only a copy of the written notice and oral assertions that the reason is genuine. There is always supporting documentation available and as such it should be provided.
The right of termination asserted here is based in s51(1)(a) RTA and requires the owner’s family member to have a valid intention to move into the premise and then reside there for at least 90 days. The family member therefore needs to be genuine and committed to this move; it is not to be undertaken without full consideration or in a disguised effort to end the tenancy for other reasons. This section supports the notion that landlords should not require a tenant to leave their home lightly.
If circumstances change unexpectedly for the owner, then that will not in and of itself render the notice invalid. However, if that occurs within a short space of time, it naturally casts questions over whether the original intention was genuine or not.
In this case, it is not clear exactly when the owner changed her mind or why but what is clear is that she did so in less than six weeks following the provision of the notice. The vague reason conveyed by Ms Walton is that her circumstances changed. Ms Walton was not aware who the family member was or what their circumstances were. I cannot be satisfied therefore that there was a genuine commitment of this unknown family member to move into the property; the evidence is simply not available to make such a finding and the circumstances point otherwise.
Of particular relevance is that the property was listed for a rental $70 higher than these tenants paid. As they had not been in the property for 12 months the landlord was not entitled to increase their rent had they stayed on 2 until 1 by section 40 of the Residential Tenancies Amendment Act 2020 (2020 No 59) 2 S24 RTA November. This 10% increase in rent therefore does not support RentCare’s submission of a genuine intention.
RentCare is named as the landlord on the tenancy agreement. RentCare are therefore liable to the tenants to ensure their compliance with their obligations under the RTA. RentCare most certainly have separate obligations to act on their client’s (the owner’s) instructions, however in this situation they have a corresponding responsibility to ensure that a termination notice they give is lawful; i.e. validly given. It is that responsibility over which the Tribunal has jurisdiction.
RentCare knew that in giving such a notice they were only entitled to do so if there was a genuine need of a family member to move into the property for at least 90 days. They have not provided sufficient evidence to establish that there was a genuine need. Accordingly, I find that they have intentionally committed an unlawful act in serving a notice to terminate that has not been established as justified in the circumstances.
Ms Walton’s argument that the tenants would have received notice when the property was placed on the market anyway and therefore the end result was inevitable, does not hold weight. The property has not yet been marketed and `there is no evidence as to when it will be; the market is still slow. The tenants could well have therefore had many more months, if not years, of living in the property and saving for their own.
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.
In an assessment of an appropriate award of exemplary damages, I place considerable weight on the upheaval and distress the tenants suffered. Moving is not an economic or stress-free exercise and it appears that they did so unnecessarily here. They are now paying a higher rent and have been so upset at this situation that they have put themselves through the further pressure of bringing this claim in an effort to curb this practice, not something one does lightly.
I accept that RentCare were not acting maliciously to upset the tenants, nor were they on a crusade to evict them. I also accept that they were not aware the owner was relisting the property until after the tenancy ended. Where they were negligent however was in ensuring that their owner’s instructions were genuine and committed as was their obligation under the RTA.
Exemplary damages are not compensatory in nature but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences Accordingly, for the reasons discussed above, including Parliament’s commitment towards ending no-fault terminations, I find an award of $1,500 justified in the circumstances. This is at the lower end of the scale because I am not aware of any previous, similar orders against the landlord.
Because [The tenant/s] have wholly succeeded with the claim, I must reimburse the filing fee. On the same basis 3 I also approve their application for suppression.

Claims and awards in Tenancy Tribunal application 4620130 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach s60AA	$1,500.00	breach s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

By way of declaration: the notice provided to terminate this tenancy was unlawfully given.
RentCare Property Management Limited must pay [The tenant/s] $1,520.44 immediately in accordance with the following table:
An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

Reasons

This tenancy commenced on a short, fixed term contract from October 2022. It rolled over to a periodic tenancy in May 2023 and 12 days later Rentcare got instruction from the owner to give the tenants notice on the basis that they were going to have a family member move in, and then sell the property.
The tenants were able to secure alternative accommodation and subsequently gave their 28 days’ notice to vacate, with the tenancy ending formally on 21 June.
The owner then listed the property for rent on 26 June. The owner advised RentCare the following day that she was going to manage the next tenancy as she was only looking for a short (“3-6month”) tenancy before she listed the property for sale as had been her original intention. In contradiction, part of the blurb of the advertisement says a minimum 6-month contract is sought. The property is not as yet listed for sale.
Ms Walton for RentCare says the owner told them that her family member’s circumstances had changed which is why she advertised for tenants again. There is no documented information available from the owner other than her short email to RentCare that she was advertising the property. Ms Walton says the discussions regarding the end of the tenancy were all oral.
[The tenant/s] are distressed at this turn of events as they had very much wanted to remain in the home as long as they could. They are saving for a home of their own and to incur moving costs eight months after moving in has been stressful and has taken a toll.
They had been served with two 14-day notices during their tenancy which were subsequently withdrawn so they were suspicious of the landlord’s motivations from the start. They did think that RentCare wanted them to leave however Ms Walton says this is absolutely not the case and they were valued tenants. She says they would have helped them into another of their properties if needed and they were supportive of continuing the tenancy.
Ms Walton also notes that it had always been the owner’s intention to sell the property as she had tried in 2022 but been unable to. Therefore, she says the tenants were always going to get a termination notice at some stage, but agrees it was unfortunate how it played out. Ms Walton’s opinion is that the owner was genuine in having a family member wanting to move in and that she has not acted in an underhand way. From RentCare’s perspective, they have acted upon instruction and have not tried to mislead or deceive the tenants in any way. The law and discussion
Pursuant to section 60AA of the Residential Tenancies Act 1986 (RTA) a landlord must not give a notice to terminate the tenancy, 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.
This section was inserted into the RTA by Parliament in February 2021 1 in an effort to provide tenants with increased security of tenure and to curb the practice of landlords ending tenancies because they did not like the tenants or ending them without reason.
Section 51 sets out the reasons a landlord may terminate a periodic tenancy. It directs that the reason must be stated clearly so that a tenant knows why their tenancy is ending, and that a justified reason exists. By setting a high award of exemplary damages for breaching this section, Parliament has signalled that there should be a significant consequence for landlords who do so.
Other Tribunal decisions have held that landlords who issue notice to terminate a tenancy must provide the Tribunal with some evidence to substantiate the reason given in the notice. It will not generally be enough to discharge the burden of proof required (that it is more probable than not) to provide only a copy of the written notice and oral assertions that the reason is genuine. There is always supporting documentation available and as such it should be provided.
The right of termination asserted here is based in s51(1)(a) RTA and requires the owner’s family member to have a valid intention to move into the premise and then reside there for at least 90 days. The family member therefore needs to be genuine and committed to this move; it is not to be undertaken without full consideration or in a disguised effort to end the tenancy for other reasons. This section supports the notion that landlords should not require a tenant to leave their home lightly.
If circumstances change unexpectedly for the owner, then that will not in and of itself render the notice invalid. However, if that occurs within a short space of time, it naturally casts questions over whether the original intention was genuine or not.
In this case, it is not clear exactly when the owner changed her mind or why but what is clear is that she did so in less than six weeks following the provision of the notice. The vague reason conveyed by Ms Walton is that her circumstances changed. Ms Walton was not aware who the family member was or what their circumstances were. I cannot be satisfied therefore that there was a genuine commitment of this unknown family member to move into the property; the evidence is simply not available to make such a finding and the circumstances point otherwise.
Of particular relevance is that the property was listed for a rental $70 higher than these tenants paid. As they had not been in the property for 12 months the landlord was not entitled to increase their rent had they stayed on 2 until 1 by section 40 of the Residential Tenancies Amendment Act 2020 (2020 No 59) 2 S24 RTA November. This 10% increase in rent therefore does not support RentCare’s submission of a genuine intention.
RentCare is named as the landlord on the tenancy agreement. RentCare are therefore liable to the tenants to ensure their compliance with their obligations under the RTA. RentCare most certainly have separate obligations to act on their client’s (the owner’s) instructions, however in this situation they have a corresponding responsibility to ensure that a termination notice they give is lawful; i.e. validly given. It is that responsibility over which the Tribunal has jurisdiction.
RentCare knew that in giving such a notice they were only entitled to do so if there was a genuine need of a family member to move into the property for at least 90 days. They have not provided sufficient evidence to establish that there was a genuine need. Accordingly, I find that they have intentionally committed an unlawful act in serving a notice to terminate that has not been established as justified in the circumstances.
Ms Walton’s argument that the tenants would have received notice when the property was placed on the market anyway and therefore the end result was inevitable, does not hold weight. The property has not yet been marketed and `there is no evidence as to when it will be; the market is still slow. The tenants could well have therefore had many more months, if not years, of living in the property and saving for their own.
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.
In an assessment of an appropriate award of exemplary damages, I place considerable weight on the upheaval and distress the tenants suffered. Moving is not an economic or stress-free exercise and it appears that they did so unnecessarily here. They are now paying a higher rent and have been so upset at this situation that they have put themselves through the further pressure of bringing this claim in an effort to curb this practice, not something one does lightly.
I accept that RentCare were not acting maliciously to upset the tenants, nor were they on a crusade to evict them. I also accept that they were not aware the owner was relisting the property until after the tenancy ended. Where they were negligent however was in ensuring that their owner’s instructions were genuine and committed as was their obligation under the RTA.
Exemplary damages are not compensatory in nature but are a penalty that is applied in cases of serious breach, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences Accordingly, for the reasons discussed above, including Parliament’s commitment towards ending no-fault terminations, I find an award of $1,500 justified in the circumstances. This is at the lower end of the scale because I am not aware of any previous, similar orders against the landlord.
Because [The tenant/s] have wholly succeeded with the claim, I must reimburse the filing fee. On the same basis 3 I also approve their application for suppression.

Tenancy Tribunal case 4620130 — Exemplary damages at 17 Sirsi Terrace, Broadmeadows, Wellington 6035

At a glance

Tenancy Tribunal case 4620130 — Exemplary damages at 17 Sirsi Terrace, Broadmeadows, Wellington 6035

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions