What was Tenancy Tribunal case 4676650 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 4676650?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4676650?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461617-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4676650 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 4676650?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4676650?

The dispute type was not classified.

Where can I read the official tribunal order for case 4676650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461617-Tribunal_Order_Redacted.pdf.

Room Granny flat, 184 Hendersons Road, Hoon Hay, Tenancy Tribunal Case 4676650 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s termination notice dated 3 August 2023 as varied by the landlord’s notice dated 5 September 2023 is a valid termination notice and terminates the tenancy on 5 October 2023.
The landlord’s application for a possession order is adjourned to the first available date after 5 October 2023.
30 minutes will be allowed for the next hearing to be conducted by telephone, scheduled at this court on the next available date.
The tenant’s cross application is withdrawn.

Reasons

Both parties attended the hearing. The landlord was represented by Candice Rhodes (Mrs Rhodes) who has an Enduring Power of Attorney from the landlord in respect of her property. The tenant questioned her authority to make this application on behalf of the landlord, but I am satisfied that she has the necessary authority under the Power which is in effect.
I see no legal difficulty with Mrs Rhodes acting as the landlord’s Attorney operating from Australia. The landlord is in New Zealand and so there is no need to appoint a local agent. The tenant also raised some minor technical issues regarding the application, but they are not significant.
The tenant has made a cross application, but she confirmed that she wishes to withdraw it.
The landlord claims possession based on a termination notice. The tenant contests the validity of the notice. For the reasons which follow, I have found that the notice is valid, and that the tenancy will end on 5 October 2023. Because that date has not yet passed, and the tenant has not failed to vacate in accordance with the notice and termination, the Tribunal cannot yet make an order for possession. I have therefore adjourned the application to the earliest available date after 5 October.
The original notice was sent to the tenant on 3 August 2023. It stated the ground for termination as a family member moving into the premises. That does not strictly follow the wording of s51(1)(a) of the Residential Tenancies Act 1986 (the Act), but the tenant was already aware of what the landlord intended, and I am satisfied that the notice should not be held invalid for that reason. The tenant does not dispute the genuineness of the ground for the notice.
The notice states that it gives 63 days notice and that the tenant is required to vacate by 2 October 2023. The problem is that 63 days from 3 August is 5 October. Section 51 of the Act
I set out the relevant parts of s51 of the Act below, 51Termination by notice (1) A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; or (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. (5) A notice to terminate a tenancy may be given on any day, and the period of notice may be expressed to expire on any day, regardless of the date on which the tenancy commenced or of any date on which any rent is to be paid. (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 (b) that it would not be unfair to the other party to allow the original notice to be varied in the manner proposed.
The problem with the original notice cannot be cured by subsection (4) because the notice period was too short. It is fundamental requirement that the tenant receives the minimum entitlement to notice, and the Tribunal has no discretion regarding that.
The landlord was therefore correct to turn to subsection (7) to try to cure the defect.
On the face of that subsection, it appears that the landlord is required to obtain the Tribunal’s consent before serving the notice varying the first notice. But there is a District Court decision that has held that such a restriction should not be put on the landlord’s ability to serve the second notice (Noble v Simons Judge Neave Christchurch DC 20 December 2018). Apart from anything else, that makes good practical sense because by the time the landlord has applied to the Tribunal for consent and obtained an order, it might well be easier to serve a fresh notice. That would severely restrict the utility of the subsection.
That therefore takes us to the three requirements of subsection (9).
I accept the landlord’s evidence that the error in the original notice was inadvertent. I questioned Mrs Rhodes on the issue and asked her how it was that she could not correctly count 63 days forward from the date of the notice. Her answer was not entirely satisfactory, but I suppose that’s the point. Mistakes do happen even where simple tasks are concerned. I accept that it is unlikely that she would deliberately shorten the notice period to gain a small advantage.
Clearly the landlord sought to correct the error as soon as practicable after realising the mistake. The tenant pointed out the error to the landlord on 3 September and the second notice was sent on 5 September.
That leaves the question, would it be unfair to allow the original notice to be varied in the manner proposed?
The tenant said that she noticed the error with the termination approximately a week after she received the notice. She then waited approximately three weeks before pointing out the error to the landlord.
When the tenant received the notice, she was aware that she had to move out. She was aware that this was coming before she received the notice. For a week she believed that the termination date was 63 days from the notice when in fact it was only 60 days. She realised the error a week after she received the notice. She confirmed that she has been looking for alternative accommodation since she received the notice.
In these circumstances, I am satisfied that that it would not be unfair to allow the original notice to be varied in the manner proposed. The tenant has received notice of termination and she has been looking for other accommodation ever since. There was some doubt about the validity of the notice, but the tenant, has, wisely, acted as though the notice is valid. Therefore, the Tribunal gives its consent for the second notice.
It follows that the original notice, as varied, is a valid termination notice and it terminates the tenancy on 5 October.
If the tenant does not vacate the premises on 5 October or on such other date as the parties may agree, the Tribunal will be bound to make a possession order in the landlord’s favour at the next hearing. That will be a formality.
I hope that the parties can resolve this without having to come back to the Tribunal. If they are, they should notify the Tribunal immediately so that the next hearing date can be cancelled.
I have granted the tenant’s application for name suppression because she was entitled to challenge the notice and the reason this order has been needed, was an entirely avoidable mistake by the landlord’s attorney. The tenant should not have to suffer the effects of publication of her name in those circumstances.
Finally, there was an issue as to whether the tenancy is an unlawful residential tenancy. That was considered by the Adjudicator who decided the previous application between these parties. She was satisfied that it was not unlawful, although no order was made. I cannot therefore reconsider it. It would not have made any difference to the result in this order in any case.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s termination notice dated 3 August 2023 as varied by the landlord’s notice dated 5 September 2023 is a valid termination notice and terminates the tenancy on 5 October 2023.
The landlord’s application for a possession order is adjourned to the first available date after 5 October 2023.
30 minutes will be allowed for the next hearing to be conducted by telephone, scheduled at this court on the next available date.
The tenant’s cross application is withdrawn.

Reasons

Both parties attended the hearing. The landlord was represented by Candice Rhodes (Mrs Rhodes) who has an Enduring Power of Attorney from the landlord in respect of her property. The tenant questioned her authority to make this application on behalf of the landlord, but I am satisfied that she has the necessary authority under the Power which is in effect.
I see no legal difficulty with Mrs Rhodes acting as the landlord’s Attorney operating from Australia. The landlord is in New Zealand and so there is no need to appoint a local agent. The tenant also raised some minor technical issues regarding the application, but they are not significant.
The tenant has made a cross application, but she confirmed that she wishes to withdraw it.
The landlord claims possession based on a termination notice. The tenant contests the validity of the notice. For the reasons which follow, I have found that the notice is valid, and that the tenancy will end on 5 October 2023. Because that date has not yet passed, and the tenant has not failed to vacate in accordance with the notice and termination, the Tribunal cannot yet make an order for possession. I have therefore adjourned the application to the earliest available date after 5 October.
The original notice was sent to the tenant on 3 August 2023. It stated the ground for termination as a family member moving into the premises. That does not strictly follow the wording of s51(1)(a) of the Residential Tenancies Act 1986 (the Act), but the tenant was already aware of what the landlord intended, and I am satisfied that the notice should not be held invalid for that reason. The tenant does not dispute the genuineness of the ground for the notice.
The notice states that it gives 63 days notice and that the tenant is required to vacate by 2 October 2023. The problem is that 63 days from 3 August is 5 October. Section 51 of the Act
I set out the relevant parts of s51 of the Act below, 51Termination by notice (1) A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; or (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. (5) A notice to terminate a tenancy may be given on any day, and the period of notice may be expressed to expire on any day, regardless of the date on which the tenancy commenced or of any date on which any rent is to be paid. (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 (b) that it would not be unfair to the other party to allow the original notice to be varied in the manner proposed.
The problem with the original notice cannot be cured by subsection (4) because the notice period was too short. It is fundamental requirement that the tenant receives the minimum entitlement to notice, and the Tribunal has no discretion regarding that.
The landlord was therefore correct to turn to subsection (7) to try to cure the defect.
On the face of that subsection, it appears that the landlord is required to obtain the Tribunal’s consent before serving the notice varying the first notice. But there is a District Court decision that has held that such a restriction should not be put on the landlord’s ability to serve the second notice (Noble v Simons Judge Neave Christchurch DC 20 December 2018). Apart from anything else, that makes good practical sense because by the time the landlord has applied to the Tribunal for consent and obtained an order, it might well be easier to serve a fresh notice. That would severely restrict the utility of the subsection.
That therefore takes us to the three requirements of subsection (9).
I accept the landlord’s evidence that the error in the original notice was inadvertent. I questioned Mrs Rhodes on the issue and asked her how it was that she could not correctly count 63 days forward from the date of the notice. Her answer was not entirely satisfactory, but I suppose that’s the point. Mistakes do happen even where simple tasks are concerned. I accept that it is unlikely that she would deliberately shorten the notice period to gain a small advantage.
Clearly the landlord sought to correct the error as soon as practicable after realising the mistake. The tenant pointed out the error to the landlord on 3 September and the second notice was sent on 5 September.
That leaves the question, would it be unfair to allow the original notice to be varied in the manner proposed?
The tenant said that she noticed the error with the termination approximately a week after she received the notice. She then waited approximately three weeks before pointing out the error to the landlord.
When the tenant received the notice, she was aware that she had to move out. She was aware that this was coming before she received the notice. For a week she believed that the termination date was 63 days from the notice when in fact it was only 60 days. She realised the error a week after she received the notice. She confirmed that she has been looking for alternative accommodation since she received the notice.
In these circumstances, I am satisfied that that it would not be unfair to allow the original notice to be varied in the manner proposed. The tenant has received notice of termination and she has been looking for other accommodation ever since. There was some doubt about the validity of the notice, but the tenant, has, wisely, acted as though the notice is valid. Therefore, the Tribunal gives its consent for the second notice.
It follows that the original notice, as varied, is a valid termination notice and it terminates the tenancy on 5 October.
If the tenant does not vacate the premises on 5 October or on such other date as the parties may agree, the Tribunal will be bound to make a possession order in the landlord’s favour at the next hearing. That will be a formality.
I hope that the parties can resolve this without having to come back to the Tribunal. If they are, they should notify the Tribunal immediately so that the next hearing date can be cancelled.
I have granted the tenant’s application for name suppression because she was entitled to challenge the notice and the reason this order has been needed, was an entirely avoidable mistake by the landlord’s attorney. The tenant should not have to suffer the effects of publication of her name in those circumstances.
Finally, there was an issue as to whether the tenancy is an unlawful residential tenancy. That was considered by the Adjudicator who decided the previous application between these parties. She was satisfied that it was not unlawful, although no order was made. I cannot therefore reconsider it. It would not have made any difference to the result in this order in any case.

Tenancy Tribunal case 4676650 — Tenancy dispute at Room Granny flat, 184 Hendersons Road, Hoon Hay,

At a glance

Claims & awards

Tenancy Tribunal case 4676650 — Tenancy dispute at Room Granny flat, 184 Hendersons Road, Hoon Hay,

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions