What was Tenancy Tribunal case 4667571 about?

The tribunal order states: The application for exemplary damages is dismissed.

How much money was awarded in case 4667571?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4667571?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667571?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9689412-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4667571 about?

The tribunal order states: The application for exemplary damages is dismissed.

How much money was awarded in case 4667571?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4667571?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667571?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9689412-Tribunal_Order_Redacted.pdf.

31 St James Drive, Huntington, Hamilton 3210 Tenancy Tribunal Case 4667571 — Exemplary damages

Order

The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing.
The tenants claims that the landlord has breached their obligations under section 60AA.
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 Residential Tenancies Act 1986.
The tenancy began as a fixed term which ran from 22 January 2022 until 27 January 2023. The rent was $700.
The landlord wanted to increase the rent to $750, which the tenant thought was above market rent and an amount they could not afford. Eventually a rental of $730 was agreed.
This was right at the maximum level the tenants’ could afford. The landlords wanted them to sign a further fixed term, but they wanted a way out of the agreement, if the higher rental became too much for them to pay. The tenants looked at another property to rent but were not successful.
The landlord gave notice when the tenants refused to commit to renewing the fixed term tenancy for a further 12 months, at a higher rental.
At the hearing the landlord’s said the 63 day notice was given as the landlords wanted to operate the property as an Air B n B as they would generate more money from short term stays than as a rental, and they were struggling to pay the increased costs of the mortgage.
The notice said that it was given because the property was needed for a family member to reside in.
To facilitate the operation of the Air B n B their 18-year-old son needed to go and live at the property. He has assisted them with operating the business and he said at the hearing that he has lived at the rental “about 50% of the time” and spent the remainder of his time at home with his parents. This mostly being when the whole house was rented as opposed to individual rooms.
A landlord can give 63 days’ notice on the basis that they or a family member require the property, within 90 days of the termination date “as a principal place of residence” for the family member, who must also intend to reside there for at least 90 days. Section 51 (1) (a).
It was certainly arguable that the notice was retaliatory as it was given because the tenants would not sign the fixed term (which they had every right not to do). However, as the tenants said they had not filed for retaliatory notice damages, I am unable to consider that matter further.
I find the reason the landlords gave notice was to operate the Air B n B and to do this they needed their son to essentially move into the rental property, so that he could do this for them.
By a fine margin, the 50% of the time the landlord’s son is spending at the rental to operate the Air b n b means that it can be said it is a principal place of residence for him, and that was what was envisaged when the 63-day notice was given.
While certainly understanding of the tenant’s suspicion that the notice was not given for genuine or lawful reasons, the Act does not say that the owner needing the premises for a family member to live there must be the only reason for giving notice.
Needing the family member to live there to operate an Air b n b does not on its own render the 63 notice unlawful. If changing the use to an Air b n b was the only reason for giving notice then 90 days would have been required pursuant to s 51 (2) (e).
As the landlord has not committed an unlawful act in giving notice, the claim for exemplary damages must be dismissed.
The parties names are not to be published at the discretion of the Tribunal, as there is no public interest in publication of their names.

Order

The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing.
The tenants claims that the landlord has breached their obligations under section 60AA.
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 Residential Tenancies Act 1986.
The tenancy began as a fixed term which ran from 22 January 2022 until 27 January 2023. The rent was $700.
The landlord wanted to increase the rent to $750, which the tenant thought was above market rent and an amount they could not afford. Eventually a rental of $730 was agreed.
This was right at the maximum level the tenants’ could afford. The landlords wanted them to sign a further fixed term, but they wanted a way out of the agreement, if the higher rental became too much for them to pay. The tenants looked at another property to rent but were not successful.
The landlord gave notice when the tenants refused to commit to renewing the fixed term tenancy for a further 12 months, at a higher rental.
At the hearing the landlord’s said the 63 day notice was given as the landlords wanted to operate the property as an Air B n B as they would generate more money from short term stays than as a rental, and they were struggling to pay the increased costs of the mortgage.
The notice said that it was given because the property was needed for a family member to reside in.
To facilitate the operation of the Air B n B their 18-year-old son needed to go and live at the property. He has assisted them with operating the business and he said at the hearing that he has lived at the rental “about 50% of the time” and spent the remainder of his time at home with his parents. This mostly being when the whole house was rented as opposed to individual rooms.
A landlord can give 63 days’ notice on the basis that they or a family member require the property, within 90 days of the termination date “as a principal place of residence” for the family member, who must also intend to reside there for at least 90 days. Section 51 (1) (a).
It was certainly arguable that the notice was retaliatory as it was given because the tenants would not sign the fixed term (which they had every right not to do). However, as the tenants said they had not filed for retaliatory notice damages, I am unable to consider that matter further.
I find the reason the landlords gave notice was to operate the Air B n B and to do this they needed their son to essentially move into the rental property, so that he could do this for them.
By a fine margin, the 50% of the time the landlord’s son is spending at the rental to operate the Air b n b means that it can be said it is a principal place of residence for him, and that was what was envisaged when the 63-day notice was given.
While certainly understanding of the tenant’s suspicion that the notice was not given for genuine or lawful reasons, the Act does not say that the owner needing the premises for a family member to live there must be the only reason for giving notice.
Needing the family member to live there to operate an Air b n b does not on its own render the 63 notice unlawful. If changing the use to an Air b n b was the only reason for giving notice then 90 days would have been required pursuant to s 51 (2) (e).
As the landlord has not committed an unlawful act in giving notice, the claim for exemplary damages must be dismissed.
The parties names are not to be published at the discretion of the Tribunal, as there is no public interest in publication of their names.

Tenancy Tribunal case 4667571 — Exemplary damages at 31 St James Drive, Huntington, Hamilton 3210

At a glance

Tenancy Tribunal case 4667571 — Exemplary damages at 31 St James Drive, Huntington, Hamilton 3210

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions