What was Tenancy Tribunal case 4673410 about?

The tribunal order states: The Tribunal Orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4673410?

Compensation: Unlawful Termination: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4673410?

The dispute type was not classified.

Where can I read the official tribunal order for case 4673410?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11033008-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4673410 about?

The tribunal order states: The Tribunal Orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4673410?

Compensation: Unlawful Termination: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4673410?

The dispute type was not classified.

Where can I read the official tribunal order for case 4673410?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11033008-Tribunal_Order_Redacted.pdf.

Unit/Flat 7, 1940 State Highway 50, Fernhill, RD 5, Napier Tenancy Tribunal Case 4673410 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4673410 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful termination	$2,000.00	unlawful termination
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Claims and awards in Tenancy Tribunal application 4673410 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: unlawful termination	$2,000.00	unlawful termination
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

The Tribunal Orders suppression of the tenant’s name and identifying details.
must pay immediately calculated as shown in the table below.

Reasons

Both parties attended the hearing.
The landlord company was represented by its director Mr Bliss.
The Tribunal has previously found that the landlord and tenant are parties to a boarding house tenancy, which is subject to the provisions of the Residential Tenancies Act 1986 (“RTA”).
The tenancy started on 1 March 2023. Claims
The tenants’ claims for determination are that: a. the landlord failed to provide a written tenancy agreement (s.13, 13A RTA); b. [The tenant/s] and repair (s.45(1)(a)(b)); c. the landlord terminated the tenancy unlawfully (s.60AA); d. the landlord issued a retaliatory termination notice (s.54). Failure to prove a written tenancy agreement
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See s.13 RTA.
Failure to do so is an unlawful act for which exemplary damages up to a maximum of $750.00 may be awarded. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
As this is a boarding house tenancy, the landlord is also required to provide the tenant with a copy of the boarding house rules (s.66H RTA).
[The tenant/s] tenant claims that the landlord did not meet that obligation.
The evidence given by Ms Pujianingsih, who is Mr Bliss’ partner and responsible for much of the day to day running of the business, is that it was her usual practice to complete and sign a tenancy agreement, including a copy of the boarding house rules and leave it for the new tenant in their room, for the tenant to complete and return.
Her belief is that she would have done so for this tenancy either herself or by getting one of the staff, who is also responsible for cleaning of the facilities at the premises, to leave it there for the tenant. She says that because the tenancy started not long after Cyclone Gabrielle, which had impacted the property where the premises were located and the local area, she was so caught up in other obligations that she overlooked following up with the tenant about the tenant signing and returning the agreement.
The staff member concerned also gave evidence. She was able to confirm Ms Ms Pujianingsih’s evidence about the landlord’s usual practice but was unable say with certainty whether she provided an agreement to the tenant on this occasion.
A copy of the landlord’s standard form of agreement was provided in evidence. That copy is also some evidence of the landlord’s usual practice but does not prove that a copy of that agreement, signed by the landlord, was provided to the tenant in this instance.
The tenant’s evidence is that she received no agreement. That is something about which the tenant can give direct evidence as a matter within her personal knowledge. That direct evidence must be given weight, as against the landlord’s evidence of its’ usual practice.
The Tribunal exercises a civil jurisdiction, and claims must be proved on the balance of probabilities (more likely than not), not beyond reasonable doubt.
The tenant’s evidence persuades me that it is more likely than not that the landlord overlooked providing the tenant with a written, signed tenancy agreement for this tenancy.
The landlord thereby committed an unlawful act.
Where an unlawful act is committed intentionally, the Tribunal may award exemplary damages where it considers it just to do so, having regard to the considerations in s.109(3) which are: “(a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest”
The evidence persuades me that the landlord has in place a regular process that ensures tenants are provided with a signed tenancy agreement and house rules. I take into account as well that the tenant has had two previous tenancies at these premises in respect of which it is not shown that the landlord made the same omission.
That being so the tenant is unlikely to have been significantly disadvantaged by the landlord’s omission on this occasion, in terms of understanding her obligations, the landlord’s obligations and the nature and operation of the boarding house premises.
For those reasons and taking into account the distractions caused by Cyclone Gabrielle and its aftermath at the time, I do not find that it would be just to make an award of exemplary damages for the landlord’s failure to provide the tenant with a written agreement on this occasion. Condition of the premises
Section 45(1) requires that a landlord must: “(a) provide the premises in a reasonable state of cleanliness; and (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...” (my emphasis)
Breaching that obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The property comprises a main lodge, a series of portable cabins and a former campground.
Photographic evidence provided by the tenant shows the property (at the time impacted by cyclone Gabrielle) in a very poor state, that immediately gives rise to questions about whether the accommodation provided at the property could lawfully be used for residential accommodation, in compliance with regulations for safe and sanitary housing.
Unlike other orders, s.78A allows the Tribunal to make orders relating to the lawfulness of residential premises of its own initiative, whether not the tenant applies for such orders. In this case, the tenant, who was legally advised, initially applied for a declaration that the premises were unlawful but later withdrew that application. In those circumstances I do not consider that the Tribunal should “resurrect” that application of its own volition.
The tenant occupied cabin 7, the same cabin she had previously occupied. Earlier, she had occupied accommodation in the campground forming part of the property. The tenant says the cabin and associated facilities were not provided to her in a reasonable state of cleanliness or repair.
The landlord’s evidence, which included evidence from the person responsible for cleaning at the property, is that after the tenant previously vacated that cabin she cleaned it and the cabin remained empty until the tenant reoccupied it at the start of this tenancy. The landlord therefore says that if the premises were not provided in a reasonable condition (which the landlord denies, because it was cleaned after the previous tenancy), that would reflect the condition in which it was left by the tenant when she vacated previously.
Much of the tenant’s evidence focussed on the state of the “annex” to the cabin, and of the toilet and shower facilities she says she was required to use.
Photographs of the “annex” show it to have an unglazed window that is not weatherproof. The entry door to the annex is made of vertical wooden planking with significant gaps between the boards, also not weatherproof.
The landlord’s position is that the “annex” was just a closed in deck area, never intended to be weatherproof or to be occupied as a room of the cabin. The landlord says, which the tenant accepts, that the cabin itself was dry and weatherproof.
The tenant also gave evidence orally and through photographs about the state of the shower and toilet facilities. The tenant says those facilities were so disgustingly dirty that she retched when trying to use them and was reduced to washing herself in her cabin and toileting in a bucket.
The photographs show quite clearly that those facilities were not fit for use.
The landlord’s evidence, again supported by the evidence given by the responsible staff member, is that the facilities the tenant refers to were damaged and under repair and were and not to be used. She says that they were locked and the tenant was told not to use those particular facilities and that there were other adequate toilet and shower facilities, about the same distance away from cabin 7, that the tenant chose not to use, perhaps because the closed facilities were those the tenant was accustomed to using from her previous stays at the property
Finally, evidence was given by three witnesses who have responsibilities for supporting and monitoring clients in their transition from prison to the community. Not infrequently, their clients are housed at the property.
Their evidence, independently given, was consistent and was essentially that: a. the accommodation provided at the property is basic and really a last alternative to their clients being on the street; b. they are each familiar with the property, though not specifically with cabin 7, one of them at least having used toilet facilities on the property when visiting; c. “for what they are”, the premises are seen as providing acceptable accommodation for their clients, some of whom have chosen to stay on beyond the monitoring/ support period.
This is the tenant’s claim to prove. While the initial impression of the premises, presented by the tenant’s descriptions and photographic evidence are of almost squalid conditions at the property, that impression is not supported by evidence given by third party witnesses who have responsibility for the welfare of other occupants.
This is an established accommodation business and there is no evidence of any investigation having shown the premises to be non-compliant with regulatory requirements.
For those reasons, I do not find that the evidence proves the tenant’s claim. Termination of the tenancy
On Sunday 16 April 2023, after the tenant had been contacting Ms Pujianingsih about providing toilet rolls, Mr Bliss rang and left a message for the tenant telling her that she was “a pain in the arse” and needed to find another place to live.
The tenant txt Mr Bliss, that day to say that her car was in the garage until the middle of the following week and that her rent was paid up to Wednesday,. “...is that OK?”. She sent another later that day, “Please reply so I know how long I have to move please”. Mr Bliss replied, “Yes you can stay until Wednesday”
The tenant vacated that Wednesday, 19 April.
The tenant says that the voice message from Mr Bliss was a notice ending the tenancy which was: a. retaliatory; and b. unlawful.

Was it a notice ending the tenancy?

Mr Bliss says that his voicemail message was not a notice ending the tenancy because it was clearly just him letting off steam, not a formal notice of termination.
With respect, that is not how I view the evidence.
First, the message was unequivocal that the tenant needed to find somewhere else to live.
Second, it is clear and must have been clear to Mr Bliss that the tenant had taken it as notice that her tenancy was ended.
Third, the tenant specifically sought confirmation from Mr Bliss of how long she was allowed to stay. Ms Bliss confirmed “You can stay until Wednesday”. If Mr Bliss hadn’t intended to require the tenant to leave immediately, that was an opportunity for him to clarify the position. No such mention was made.
Although it is indirect evidence, I take into account notices posted around the premises such as “NOTICE FOR STUPID PEOPLE The shower is on a timer (5 Minutes) (unreadable)....”too many times get caught and you can fuck off from here...” and “WARNING!!!!!!!!!! If I catch you flicking your cigarette butt on the ground in front of the lodge you may as well pack your things............when I find one more butt I will go thru the security footage and when I identify the culprit they will be asked to leave immediately”
The evidence given during the hearing makes it clear that some residents at the property showed challenging behaviours, which gives some context for the wording of those notices, but they also seem to clearly to indicate that the landlord felt itself entitled to enforce summary termination where it chose.
The landlord also says that his voice message cannot have been the reason the tenant left, because in her Tribunal application the tenant gives 12 April 2023 as the date the tenancy ended. The MSD records disclosed through an OIA request also make reference to that date. The landlord is correct that if the tenancy ended on that date, the tenancy cannot have ended because of a notice given on 16 April 2023.
The tenant says that the date of 12 April 2023 was given in those instances as the end of the tenancy because that was the last date on which she paid rent for the premises, which is consistent with her other evidence.
Most importantly, the MSD record shows that it was created on 17 April 2023 and notes, “Client has been evicted and has until this Wednesday to move out....Client explained that she has been asked to leave over a toilet roll”
Those records are consistent with the tenant’s evidence and the timing is corroborated by the communications between the parties.
For those reasons I disagree with Mr Bliss that the tenant’s reference to 12 April 2023 in those instances as the end of the tenancy is absolute proof that his voice message was not the cause of the tenancy ending.
I find it proved on balance that the tenancy was ended by Ms Bliss’ voice message to the tenant, reinforced by the subsequent txt confirmation.
A landlord under a boarding house tenancy, except in circumstances that do not apply here, is required to give a tenant 28 days’ notice of termination. I therefore find that the landlord was in breach of that obligation.

Was the notice retaliatory?

For a notice of termination 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. Section 54 expressly applies to boarding house tenancies (see. S.66U(4).
In my view that is the case here. Mr Bliss required that the tenant leave because, in his view, she was being a “pain in the arse” by complaining about a lack of toilet paper in the facilities. I find that the notice was retaliatory.
However, s.54(1) requires that an application for a declaration that a termination notice is retaliatory, must be made within 28 days of the notice being given. The 28 day period for filing is mandatory – see Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.”
Here, the notice was given on 16 April 2023. The tenant’s application was filed on 1 September 2023, well outside what could be considered a “....very short overrun of a day or two caused by circumstances beyond a tenant's control.....’. The application for exemplary damage for issuing a retaliatory notice of termination must therefore be declined.

Was the notice unlawful?

By s.60AA RTA, “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.” Exemplary damages of up to $6,500.00 may be awarded for doing so (Schedule 1A RTA).
The landlord is an experienced operator of a boarding house business. I am satisfied that he is aware of his obligation to give tenants notice as prescribed by the RTA.
Due notice was not given and I find that the landlord gave a notice to end the tenancy immediately, knowing that it was not entitled to give such notice.
By doing so the landlord intentionally committed an unlawful act.
In terms of the s.109(3) criteria noted above: a. the landlord appears to have motivated to give the notice by annoyance at the tenant’s requests to be provided with toilet paper in the facilities. That is not a ground for immediate termination. Although I have dismissed the tenants claim for a declaration that the Notice was retaliatory, because it was made out of time, I do take into account that the notice was issued in retaliatory circumstances. b. the effect of the notice being given was significant. The tenant’s concern about whether she would have to leave before her car was available in a few days’ time is apparent from her communication to to Mr Bliss. The tenant then needed to make an application for emergency accommodation. c. I take into account that under s.66U(1)(d) the landlord was entitled to end the tenancy on 28 days’ notice without reasons being required, so the tenant may have been in difficult circumstances, even if the tenancy had been ended with lawful notice having been given. There is though still a significant difference between the tenant having 28 days to make other arrangements and having 3 days to do so. d. There is a public interest in ensuring that tenants’ right not to have their tenancies arbitrarily ended without proper notice, is respected.
Weighing those considerations, I find that it would be just to make an award of exemplary damages for the landlord’s unlawful act.
Because [The tenant/s] has had a claim upheld I reimburse the filing fee.

Tenancy Tribunal case 4673410 — Tenancy dispute at Unit/Flat 7, 1940 State Highway 50, Fernhill, RD 5, Napier

At a glance

Tenancy Tribunal case 4673410 — Tenancy dispute at Unit/Flat 7, 1940 State Highway 50, Fernhill, RD 5, Napier

At a glance

Award balance

Claims & awards

Order

Reasons

Was it a notice ending the tenancy?

Was the notice retaliatory?

Was the notice unlawful?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was it a notice ending the tenancy?

Was the notice retaliatory?

Was the notice unlawful?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions