What was Tenancy Tribunal case 4621209 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 4621209?

Filing Fee: $20.44 awarded to landlord; Rent For Notice Period: $1,560.00 awarded to landlord

What type of tenancy dispute was case 4621209?

The dispute type was not classified.

Where can I read the official tribunal order for case 4621209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9481516-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4621209 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 4621209?

Filing Fee: $20.44 awarded to landlord; Rent For Notice Period: $1,560.00 awarded to landlord

What type of tenancy dispute was case 4621209?

The dispute type was not classified.

Where can I read the official tribunal order for case 4621209?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9481516-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4621209 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4621209 — net $1,580.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent for notice period	$1,560.00	Rent for notice period
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,580.44
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,580.44

Claims and awards in Tenancy Tribunal application 4621209 — net $1,580.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent for notice period	$1,560.00	Rent for notice period
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,580.44
Bond	$3,120.00
Total payable by Tenant to Landlord	$1,580.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord name and identifying details.
[The tenant/s] must pay [The landlord/s] the amount of $1,580.44 from the bond, calculated as in the table below.
The Bond Centre is to pay the bond of $3,120.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,580.44 [The tenant/s]: $1,539.56

Reasons

Both parties attended the hearing on 14 September 2023 (the landlord by its representative).
The tenancy started on 22 October 2021. In early May 2023, the tenant successfully bought a home and emailed the landlord to advise that he would be moving out.
Unfortunately, a dispute has arisen about whether this email is valid as notice to terminate the tenancy.
Both parties have made applications to the Tribunal. The landlord seeks rent for a notice period up to and including 15 June 2023 to be paid from the bond.
The tenant’s view is that he has paid rent for a full notice period of 28 days so is due the full bond. In addition, he seeks compensation for losses he considers have been caused by, or are related to, the landlord’s claim.
At the hearing, the tenant referred me to subsections 7 and 9 of section 51 of the Residential Tenancies Act and asked that if the Tribunal should decide that his email notice was not valid to give 28 days’ notice to end the tenancy, that it consents to accept it as if it was valid and correct. The relevant law that applies
Section 51 of the Residential Tenancies Act 1986 deals with termination of a tenancy by notice. The relevant parts of the section are: Section 51 Residential Tenancies Act ... (2B) A tenant may terminate a periodic tenancy in any case by giving at least 28 days’ notice. (3) Every notice to terminate a tenancy shall— (a) be in writing; and (b) identify the premises to which it relates; and (c) specify the date by which the tenant is to vacate the premises; and (ca) if the notice is given by the landlord, set out the reasons for the termination; and (d) be signed by the party giving the notice, or by that party’s agent. (4) In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non-compliance is not such as to mislead or affect unjustly the interests of the recipient. ..... (7) Where a party has given a notice to terminate the tenancy and subsequently realises that, because of— (a) some error in the way in which the period of the notice or the date of the expiry of that period is expressed in the notice; or (b) some delay in serving the notice,— the period of notice given is less than the minimum prescribed by subsection (1) or (as the case may require) subsection (2) or (2B), that party may, with the agreement of the other party or (failing such agreement) with the consent of the Tribunal, give to the other party a further notice varying the first notice so as to bring the period of notice given up to or above that minimum so required. (8) Every notice given under subsection (7) shall comply with the requirements of subsection (3). (9) The Tribunal shall not give its consent under subsection (7) unless it is satisfied— (a) that the error in the notice or the delay in serving the notice was inadvertent; and (b) that the party who gave the notice has sought to correct the matter as soon as practicable after realising that the period of notice given is inadequate; and (c) that it would not be unfair to the other party to allow the original notice to be varied in the manner proposed. Chronology
I now set out the important chronology and content of emails between the parties: 3 May 2023 at 11:34pmTenant email to landlord: Subject: [address of premises] – Notice to End Tenancy Hi [name], Just letting you know we have bought another house in [location], so will be moving out soon, hopefully by the end of this month. Settlement is on 12 th May, and I suspect I’ll need two to three weeks cross- over as I have so much stuff, and we are moving two houses back into one again. Please can you confirm you’ve received this, and let me know how flexible you guys will be on end date. 4 May 2023 at 8:36amLandlord email to tenant: Good news for you! You just need to give 28 days’ notice, so if you would like to confirm that today we can end the tenancy on 1 st of June. If you prefer a later date, just let me know. I look forward to hearing from you. 22 May 2023 at 11:02am Landlord email to tenant: Hi [name], We have received an enquiry regarding the renting of [address of premises], but haven’t received your 28 days notice yet?

Can you please confirm if you are handing in your notice, or not yet?

22 May 2023 at 1:15pm Tenant to landlord: Hi [name], I gave you notice on 3 rd May, this is confirmed by “Notice to End Tenancy” in the subject line. .... You advised and confirmed the 28 days would mean an end of 1 June, which I was happy with, and I have been working to that. 22 May 2023 at 4:10pmLandlord to tenant: ... I have set your tenancy to terminate on 19 June, which is 28 days from today. ... we will advertise the property being available on 8 th June. If we are able to sign a tenancy for this date, we will subsequently be able to terminate your tenancy on the 1 st of June. If not, we can then discuss further and go through the mediation/tribunal process if required.

The landlord then advertised the property as available for rent and, on 7 June 2023, a tenancy contract was entered into with new tenants to commence from 23 June 2023.
The landlord offered to terminate the tenancy as at 15 June 2023.
The parties were unable to come to an agreement at mediation.
The dispute now falls to be decided by me. The issues to be decided
The issues are:- a. Was the tenant’s email on 3 May 2023 sufficient notice to terminate the tenancy as at 1 June 2023? b. If the answer to that is ‘no’, can and does the Tribunal consent to accept the email as if it was valid and correct on the grounds that any error in the tenant’s email notice was inadvertent and that the tenant sought to correct the matter as soon as practicable after realising? c. If the tenant is successful, should the Tribunal award all or any of the compensation he seeks? Was the tenant’s email on 3 May 2023 sufficient notice to terminate the tenancy as at 1 June 2023?
After considering the evidence carefully, my decision is that the e-mail notice from the tenant is not sufficient to terminate the tenancy as at 1 June 2023. My reasons for this are: a. the e-mail does not specify the date by which the tenant is to vacate the premises. This is required by s51(3) RTA. The only date given in the email is the settlement date of the purchase of the new house. The email does not mention any other date; and b. the intention to terminate the tenancy on the expiry of a particular period is not stated clearly in the notice. The email is imprecise about the time- period that the tenant might need to organise moving out. It says: “I suspect I’ll need two to three weeks cross-over”. It is not possible to know from these words, exactly which date or at the end of which period the tenant intends the tenancy to terminate. This means that s51(4) RTA does not apply.
The tenant said in the hearing that he felt that the professional landlord should have contacted him if it was unclear or unsure about his e-mail notice.
The landlord did do this. An e-mail was sent to the tenant at the beginning of the next working day on 4 May 2023 which asks the tenant to “confirm that today”. There are other words in the email that invite a response from the tenant, including “let me know” and “I look forward to hearing from you.”
The tenant did not reply to the landlord’s 4 May 2023 email.
The landlord does not have an obligation to clarify the tenant’s email. It is up to person giving the notice to make sure that their intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice. Can and does the Tribunal consent to accept the 3 May 2023 email as if it was valid and correct on the grounds that any error in the tenant’s email notice was inadvertent and that the tenant sought to correct the matter as soon as practicable after realising?
The tenant has asked the Tribunal to consent to accepting his e-mail notice of 3 May 2023 as if it was valid and correct to give the minimum 28 days’ notice required.
The short answer to this is that the Tribunal has no power to do this.
Subsections 7 and 9 of section 51 RTA do not say that the Tribunal can consent to accept a defective notice.
They say that the Tribunal can consent to the party giving the other party a “further notice” which varies the first notice.
This requires a party to apply first to the Tribunal for consent to do this, and then for them to issue the second notice which fixes the first notice. This was confirmed by a District Court case Charan v Barfoot & Thompson DC Manukau CIV-2010-092-002100 at paragraph 7.
This is not what happened here. By the time this hearing was held, the tenancy was over. There would be no point in the Tribunal consenting to the tenant issuing a second notice to vary the first notice.
Also, the purpose of subsections (7) and (9) are so that a technical error in calculating a notice period or a service period can be remedied by giving a second notice if the error was inadvertent, the person tried to fix it as soon as they realised the error, and it would not be unfair on the party receiving the notice; s51(9) RTA.
In this case, the error in the 3 May 2023 notice was more than a technical or calculation error. The notice did not give a clear termination date or period at all. This is not something that can be remedied by s51(7) RTA.
Also, although the error was inadvertent and the tenant did try to remedy it as soon as he realised the problem, it would be unfair on the landlord to treat the 3 May 2023 notice as if it was valid. Neither the tenant nor the landlord realised that there had been a miscommunication until 22 May 2023. If the 3 May 2023 notice is treated as if it was valid, the landlord will miss out on three weeks of rent through no fault of its own. Conclusion
My decisions mean that the tenant’s application for compensation is dismissed.
The tenant revealed in the hearing that the clarity of his communication and understanding of the landlord’s emails may have been affected by Asperger’s syndrome. He also said that he was quite unwell with COVID-19 at the time of these events.
This is unfortunate and has had a real impact on him and on the landlord.
I note that the landlord did everything possible to re-tenant the property quickly (readvertising it immediately on 22 May 2023). It has also sought compensation for a reduced notice period (24 days).
The landlord is entitled to be awarded the filing fee and to suppression of its name because it has wholly succeeded with its application; see s95A(1) and s102(2)(a) RTA.
The tenant has applied for suppression of his name. After considering his interests, and the public interest I grant this. This was a genuine misunderstanding and miscommunication with no fault on either side. Any public interest is in the content of the decision and not in the identity of either party.
As I said in the hearing, I am grateful to the parties for their professionalism, courtesy, and fair-mindedness.

Tenancy Tribunal case 4621209 — Tenancy dispute

At a glance

Award balance

Tenancy Tribunal case 4621209 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Can you please confirm if you are handing in your notice, or not yet?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Can you please confirm if you are handing in your notice, or not yet?

Topics & place

Residential Tenancies Act sections

Frequently asked questions