Published tribunal order
Tenancy Tribunal case 4645797 — Tenancy dispute at 10 Houkura Way, Sandringham, Auckland 1025
Decided 18 Sept 2023 · Published 18 Sept 2023 · Application 4645797
Mixed / unclear
Order
- The Tribunal declares that the notice to increase the rent to $950.00 on 29 September 2023 exceeds the market rent by a substantial amount and is of no effect.
- The weekly rent shall continue be $850.00 per week pending any further rent increase notice issued.
- The Tribunal declares that the 90-day notice to terminate dated 17 August 2023 is retaliatory and of no effect.
- Crockers Property Management Limited As Agent For 111 Joint Venture Limited is ordered to pay $20.44 to Shahnaz Khan being reimbursement of the filing fee.
Reasons
- This hearing took place on 6 September 2023. The applicant tenant, Ms Khan, attended the hearing. The property manager Ms Wang and team leader Ms Singh from the property management company attended the hearing. Mr Sun and Ms Xu attended as employees of the owner company.
- Shahnaz Khan claims the landlord is seeking rent that exceeds the market rent by a substantial amount and seeks an order determining the amount to be paid in line with the market rent.
- This tenancy commenced on 20 May 2022 and was for a fixed term ending in May 2023 at which point it became a periodic tenancy. The tenant rented a modern 3-bedroom, 3 bathroom townhouse in Sandringham for $850.00 per week. The house is now three years old. Rent increase
- The landlord sent notice to increase the rent on 29 September 2023 to $950.00 per week. The tenant has applied to the Tribunal and claims that this substantially exceeds market rent. In support of this claim the tenant provided copies of advertisements for four similar rentals nearby and in particular for the next door identical property which rented out on 26 August 2023 for $850.00.
- The landlord disputed that the amount was above market rent and provided one advertisement for a property in a neighbouring suburb with three bedrooms and three bathrooms advertised on 31 August 2023 for $920.00 per week. There was no evidence of whether this property was yet rented out and the actual rent amount contracted.
- The landlord also provided a copy of a tenancy agreement for another neighbouring townhouse also owned by the landlord which was rented on 3 October 2022 for $880.00. The property managers claimed that in their experience rents had increased 10 percent since then but provided no proof of this.
- The landlord asked for proof of the date the neighbouring house was rented out for $850.00 per week and the tenant agreed to provide this. A copy of the tenancy agreement for the next door premises recording a commencement date of 26 August 2023 and weekly rent of $850.00 was provided to the Tribunal on 8 September 2023.
- The Tenancy Services website which records the market rent for areas based on bonds lodged states that the upper quartile rent for a 3 bedroom house in Sandringham as at 30 June 2023 is $848.00.
- As this house has three bathrooms and is only three years old it is accepted that this is in the upper quartile.
- Having considered the evidence of both parties and the Tenancy Services bond information the Tribunal finds that the market rent for this premises is $850.00 per week. The is in line with the neighbouring identical premises being rented at $850.00 per week very recently on 26 August 2023 and with the upper quartile rent of $848.00 for a 3-bedroom house as recorded by Tenancy Services.
- An increase of $100 per week substantially exceeds the market rent. Accordingly, the Tribunal orders that the rent remain in line with the market rent of $850.00.
Is the Notice to Terminate Retaliatory?
- The tenant filed proceedings in the Tenancy Tribunal on 2 August 2023 exercising her rights to challenge the rent increase and the property manager was notified.
- On 17 August 2023, the landlord gave the tenant a notice ending the tenancy on 16 November 2023. The tenant claims the notice is retaliatory.
- For a notice to be declared retaliatory, 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. See section 54(1) Residential Tenancies Act 1986.
- The landlord denied the notice was retaliatory and stated that the landlord had no ulterior motive but they were stretched for cash and when the rent increase was not accepted decided to sell the premises. The landlord stated that the property had been listed with an agent since 2021 but not actively marketed and the landlord decided now to market the property as vacant premises. Evidence of the earlier listing was provided. Evidence of notice to terminate the tenancy of the landlord’s neighbouring rental being given on the same day was also provided.
- As this property had been listed for sale since 2021 and having heard the parties’ evidence the Tribunal finds that the giving of notice to terminate on 17 August so soon after the tenant’s application to the Tribunal was at least partly motivated by the tenant challenging the rent increase.
- Accordingly, the notice is declared to be retaliatory and of no effect. It is noted that this does not prevent the landlord from marketing the premises for sale in accordance with the provisions of the Residential Tenancies Act 1986. Filing fee/Suppression
- Because Shahnaz Khan has wholly succeeded with the claim I must reimburse the filing fee.
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.