What was Tenancy Tribunal case 4658709 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4658709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4658709?

The primary dispute was Cleanliness. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4658709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9658200-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4658709 about?

This case concerned a cleanliness dispute.

How much money was awarded in case 4658709?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4658709?

The primary dispute was Cleanliness. Related themes: Healthy homes, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4658709?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9658200-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4658709 — Cleanliness

Tenantcheck Insights

Reasons

Both parties attended the hearing. The landlord was represented by [The landlord’s representative]. The tenant was represented by [The tenant’s representative].

The tenancy in this case commenced on 08 February 2023 and is periodic. On 17 April 2023, the landlord issued the tenant a 90-day notice to terminate the tenancy on the basis they intended to complete extensive renovations and that it would not be practicable for the tenant to remain in occupation, section 51(2)(f) of the Residential Tenancies Act 1986 (The “Act”). Soon after issuing it was discovered the notice was invalid as it did not give the minimum required 90 days’ notice. Acknowledging the error, on 20 April 2023, the landlord issued a second notice, on the same grounds.

On 26 June 2023, the tenant filed a claim that the landlord had failed to provide a Healthy Homes compliance statement with the tenancy agreement, section 13A(1F), that both termination notices had been issued without there being sufficient grounds, and that at the material time the landlord had knowledge that they were not entitled to issue them , section 60AA . The tenant also claimed that the landlord had interfered with the tenant’s reasonable peace comfort and privacy, amounting to harassment, section 38(3) of the Act.

The evidence was heard on 24 July 2023. On 15 August 2023, the Tribunal delivered a decision stating that the notice issued on 17 April 2023 was invalid because the landlord had not given the required 90 days. Additionally, the notice issued on 20 April 2023 was also deemed invalid as it had not been issued by the landlord or an agent of the landlord.

Although the Tribunal was not satisfied that the planned works were sufficiently extensive and to the extent requiring the tenant to vacate the property, the evidence did not establish that the landlord necessarily had knowledge that the grounds were insufficient. The Tribunal was satisfied that the landlord had interfered with the reasonable peace comfort and privacy amounting to harassment.

On 16 August 2023, the day after the Tribunal delivered a reserved decision, the landlord issued another notice to terminate on the basis that within 90 days of the end of the tenancy the landlord intended to offer the property for sale, section 51(2)(a) of the Act.

On 17 August 2023, the tenant filed a claim that the notice was retaliatory, that it was without valid grounds, and that the landlord had knowledge that they were not entitled to issue the notice.

The matter was initially scheduled for hearing on 29 September 2023 but adjourned to 15 November 2023. At the commencement of the hearing, both parties advised that after filing the application, the tenant had given 28 days’ notice, and the tenancy had ended on 14 November 2023. In addition to a declaration that the notice is invalid and seeking exemplary damages, the tenant also seeks compensation of $1,370.00.

Section 54(1) of the Act states that within 28 working days after the receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51, the tenant may apply to the Tribunal for an order declaring the notice 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.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A of the Act.

In the case of Kerr v Woodman, DC Porirua, MA 244/88, 03 November 1988 Judge Ongley stated that a notice given for genuine reasons would not be considered retaliatory.

In Carver v Kiesanowski [2021] NZDC 3939 the Court stated at [39] : The purpose behind empowering the tribunal to declare a termination notice retaliatory and of no effect is to prevent landlords from discriminating against those who assert their rights as tenants or make complaints by ending their tenancy. The provision is designed to protect tenants but not from the legitimate decision a landlord may make to sell their property or no longer operate it as a rental property

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.

Knowledge is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court, dealing with knowledge in a criminal context, held that knowledge meant “knowing or believing in a state of affairs”.

Breaching any of these obligations 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 of the Act.

The notice has been produced and appears to be valid for form. It has been served on the tenant giving more than the required 90 days’ notice. The application claiming the notice is retaliatory has been made within the statutory time limit.

In this case the onus is on the tenant to establish, more likely than not, that the notice issued on 16 August 2023 was retaliatory, and/ or that the landlord does not intend placing the property on the market within 90 days of the termination of the tenancy.

The tenant submitted the timing of the notice issued on 16 August 2023 strongly suggested that it had been a direct response to the Tribunal’s finding that the previous notice was invalid, and the tenant having successfully exercised their rights.

The tenant stated that they lacked direct evidence that the landlord did not have any intention to sell the property within 90 days. The tenant stated there was however circumstantial evidence that when considered together cast a doubt on the landlord’s intention to sell or otherwise dispose of the property.

The tenant stated that during the tenancy the landlord had behaved in a manner that clearly suggested that they were irritated or annoyed by the tenant and wanted the tenancy to end. They produced a transcript of an exchange between landlord and the tenant surreptitiously recorded on 17 April 2023, in which, while serving the notice to terminate the tenancy, the landlord went on to cite several other reasons why they wished to bring the tenancy to an end.

Despite being so resolute in their intention to conduct renovation work, within twenty-four hours of the Tribunal’s decision, the landlord appeared to have made an abrupt change, deciding to instead sell the property.

The tenant states during the end of tenancy inspection that the landlord claimed to have engaged professional cleaners. Except for a recently discovered carpet stain the property did not require cleaning. The tenant argued that in any event cleaning would be unnecessary if the landlord intended renovating the property before selling. The tenant questioned the timing, stating that the landlord had arranged the cleaners before conducting the inspection.

The property was provided fully furnished. At the commencement of the tenancy the tenant states they removed and stored items that they did not require. The tenant states that during the end of tenancy inspection the landlord complained that they would have to unpack the items. The tenant argues that if the property was to be renovated as claimed these items would need to be removed again, casting doubt on the landlord’s true intention.

The tenant also referred to a request made by the landlord shortly after the commencement of the tenancy, asking the tenant to vacate the property for a period so that it could be offered for holiday rental. The tenant states that they had to point out that they had entered into a periodic residential tenancy agreement, and that such a request was inappropriate.

The tenant states that despite the tenancy having been established since early February 2023 that the property remained listed, although unavailable, on a well- known holiday accommodation website.

The landlord took the promise to tell the truth, understanding that failure to do so may result in prosecution.

The landlord stated that the initial plan had been to renovate and then move into the property themselves or to sell. The two previous notices had also been issued with that intention. The landlord stated that at the hearing on 24 July 2023 it was apparent that the notices would likely be found invalid for form. One notice had not afforded the required time, the other notice had not been issued by the landlord. The landlord stated however they felt it prudent to await the Tribunal decision, which was reserved.

There is no dispute that the landlord’s partner, who is the owner of the property, has a terminal illness. The landlord stated that the present treatment regime had come to an end, and that further treatment would need to be sought offshore, at a cost. The landlord stated that they had also been diagnosed with heart issues and required an operation. Both the landlord and his partner are past retirement age.

The landlord states the initial intention had been to renovate and then move into the property, but that following the issuing of the first notice in April 2023, the health of the owner had deteriorated resulting in an increasing urgency to “tidy up their affairs”, which required disposing of the property to release funds. While they expressed sympathy for the landlord’s circumstances, the tenant challenged the landlord, stating that at the commencement of the tenancy, they had knowledge of the owner’s unwellness.

The landlord has provided a quote dated 31 August 2023 to have the exterior of the property painted and an email from a real estate agent dated 05 September 2023, stating that they would visit the property after 18 November 2023, and conduct an appraisal.

The landlord has suggested that, in hindsight a notice to vacate on the basis that the property was to be sold would have been more prudent all along. The landlord states that they have also taken steps to dispose of other property they own and downsize their own residence.

The landlord did not consider it counterintuitive to clean the property before conducting any renovations. Based on the evidence provided, it appears that the scale of any renovation is now less than initially envisaged. The present notice, has in any event, been issued on the basis that the landlord intends to sell the property.

The tenant also questions the timing of medical evidence concerning the landlord’s heart issues, pointing out that the echocardiogram took place after the notice was issued. However, I consider it likely that the landlord had knowledge of his condition prior to the issue of the notice, but that the severity and treatment option were only confirmed on 16 August 2023. Decision

As stated, the onus is on the tenant to satisfy the Tribunal that the notice was retaliatory, and that the landlord does not have the intention to sell the property. The proposed renovations appear to have been scaled back to mere painting of the exterior; they are, in any event a red herring. The notice issued on 16 August 2023 was on the basis that the landlord intends to sell the property, and not based on renovations requiring the tenant to vacate. I am satisfied that the overriding motivation behind the issue of the notice to dispose of the property is the health of both the owner and the landlord. This is, in my view, a genuine reason. While the notice was issued the day after the Tribunal decision on the validity of the previous notice, I accept the landlords’ explanation. The landlord has given evidence under promise stating that the property is to be offered for sale. The tenant’s application is dismissed. Name suppression

Both parties seek name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

The landlord has been wholly successful and is granted name suppression.

The tenant seeks name suppression on the basis that they had been successful in the previous hearing and granted name suppression, and that this application may be considered an extension of those proceedings.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.

In this case it appears that naming the tenant, as the unsuccessful party, may inadvertently lead to the revealing of the identity of the landlord and their partner, but perhaps more importantly their health issues. On balance I am satisfied that it is appropriate to exercise the discretion in section 95(4) and I also order suppression of the tenant’s name.

Reasons

Both parties attended the hearing. The landlord was represented by [The landlord’s representative]. The tenant was represented by [The tenant’s representative].

On 17 August 2023, the tenant filed a claim that the notice was retaliatory, that it was without valid grounds, and that the landlord had knowledge that they were not entitled to issue the notice.

In the case of Kerr v Woodman, DC Porirua, MA 244/88, 03 November 1988 Judge Ongley stated that a notice given for genuine reasons would not be considered retaliatory.

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 any of these obligations 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 of the Act.

The tenant states that despite the tenancy having been established since early February 2023 that the property remained listed, although unavailable, on a well- known holiday accommodation website.

The landlord took the promise to tell the truth, understanding that failure to do so may result in prosecution.

Both parties seek name suppression.

The landlord has been wholly successful and is granted name suppression.

Tenancy Tribunal case 4658709 — Cleanliness

At a glance

Tenancy Tribunal case 4658709 — Cleanliness

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions