What was Tenancy Tribunal case 4682289 about?

The tribunal order states: The Tribunal declares that the landlord is precluded from enforcing the

How much money was awarded in case 4682289?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4682289?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4682289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9643225-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4682289 about?

The tribunal order states: The Tribunal declares that the landlord is precluded from enforcing the

How much money was awarded in case 4682289?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4682289?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4682289?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9643225-Tribunal_Order_Redacted.pdf.

139 Sunset Road, Mangakakahi, Rotorua 3015 Tenancy Tribunal Case 4682289 — Exemplary damages

Order

The Tribunal declares that the landlord is precluded from enforcing the increased bond amounts (total additional bond payment of $240) in relation to the rent increases in 2019 and 2020.

Reasons

Both parties attended the hearing.
The tenancy began in March 2015 and the weekly rent was $175. The required bond was $700. Subsequently there has been several rent increases and the tenant has paid the increased bond when asked.
This application relates to rent increases in 2019 and 2020, when she was not asked to pay additional bond. It appears this was oversight on the part of the property manager acting for the owner at the time, as the tenancy agreement specifically includes a term stating that increased bond could be requested when the rent increased. Section 18(4) of the Act also states that “on the lawful increase of the rent, the landlord may require payment of a further sum” of bond but only to the level of four weeks rent.
Subsequently a new property manager requested the additional bond of $240 and the tenant applied to the Tribunal for an order that the increased amount could not be enforced as the request was not made at the time.
This application was withdrawn on 17 November 2021 (application number 4319999). The tenant says (and it makes perfect sense) that she withdrew on the basis that the increased amount would not be enforced.
The property manager changed again, and the current property manager says that, as she was unaware of the previous application or any agreement not to enforce the outstanding bond, she emailed the tenant asking for the bond top up of $240.
The tenant did not reply to that email, instead she made a further application to the Tribunal stating “I have been asked to back pay bond increases for previous rent increases that were not asked at that time for the increase of bond. I have already been through this with the previous property manager and her supervisor at the time and both were adamant this law did not exist until I filed for a claim with the tenancy tribunal. The case was dropped after Harcourts spoke with the tenancy tribunal and found out I was telling the truth about this being against the law, This problem has arisen again with the same company but different property manager 2 years later and I am feeling the same stresses of the situation all over again. I have been asked to back pay bond for the previous rent increase from 2019 and 2020.”
I have set the application out in full, as it simply requests a declaration that the bond increases from 2019 and 2020 cannot now be enforced. There is no reference to a request for compensation or exemplary damages.
The Tribunal makes that declaration for two reasons. The first is that it is likely that the first application was withdrawn on the basis that the increased bond would not be sought.
While record of that should be on the property management file, for some reason it is not. That agreement however seems the only logical reason that the tenant would have agreed to withdraw her first application, and I agree with her, that it would not now be fair to relitigate the issue.
The second reason has to do with the substantial merits and justice of the case. If a tenant is to budget for both rent and bond increases, they should be advised in a timely manner that they need to do so. If a property management company is tardy or negligent and does not require the increases at the time, then there is considerable merit to the argument that the cost of that should lie where it falls, i.e with the negligent party. That argument is strengthened by the wording of s 18(4) which anticipates contemporaneous requests for bond top ups.
That is the outcome in this particular case. It is not fair to now enforce the bond top up retrospectively.
As noted at the hearing I do not consider that will always be the case and a later request for a bond top up will never succeed. The wording of s 18(4) does not in my view permit such a restrictive approach.
Each case will depend on its own facts. The length of the delay will always be a relevant factor. If the notice of the additional requirement for a bond increase was sent promptly after the rent increase notice and before or soon after the rent increased, then the tenant’s argument that the bond top up should not be enforced would be considerably less likely to succeed.
The tenant’s name is not to be published.

Order

The Tribunal declares that the landlord is precluded from enforcing the increased bond amounts (total additional bond payment of $240) in relation to the rent increases in 2019 and 2020.

Reasons

Both parties attended the hearing.
The tenancy began in March 2015 and the weekly rent was $175. The required bond was $700. Subsequently there has been several rent increases and the tenant has paid the increased bond when asked.
This application relates to rent increases in 2019 and 2020, when she was not asked to pay additional bond. It appears this was oversight on the part of the property manager acting for the owner at the time, as the tenancy agreement specifically includes a term stating that increased bond could be requested when the rent increased. Section 18(4) of the Act also states that “on the lawful increase of the rent, the landlord may require payment of a further sum” of bond but only to the level of four weeks rent.
Subsequently a new property manager requested the additional bond of $240 and the tenant applied to the Tribunal for an order that the increased amount could not be enforced as the request was not made at the time.
This application was withdrawn on 17 November 2021 (application number 4319999). The tenant says (and it makes perfect sense) that she withdrew on the basis that the increased amount would not be enforced.
The property manager changed again, and the current property manager says that, as she was unaware of the previous application or any agreement not to enforce the outstanding bond, she emailed the tenant asking for the bond top up of $240.
The tenant did not reply to that email, instead she made a further application to the Tribunal stating “I have been asked to back pay bond increases for previous rent increases that were not asked at that time for the increase of bond. I have already been through this with the previous property manager and her supervisor at the time and both were adamant this law did not exist until I filed for a claim with the tenancy tribunal. The case was dropped after Harcourts spoke with the tenancy tribunal and found out I was telling the truth about this being against the law, This problem has arisen again with the same company but different property manager 2 years later and I am feeling the same stresses of the situation all over again. I have been asked to back pay bond for the previous rent increase from 2019 and 2020.”
I have set the application out in full, as it simply requests a declaration that the bond increases from 2019 and 2020 cannot now be enforced. There is no reference to a request for compensation or exemplary damages.
The Tribunal makes that declaration for two reasons. The first is that it is likely that the first application was withdrawn on the basis that the increased bond would not be sought.
While record of that should be on the property management file, for some reason it is not. That agreement however seems the only logical reason that the tenant would have agreed to withdraw her first application, and I agree with her, that it would not now be fair to relitigate the issue.
The second reason has to do with the substantial merits and justice of the case. If a tenant is to budget for both rent and bond increases, they should be advised in a timely manner that they need to do so. If a property management company is tardy or negligent and does not require the increases at the time, then there is considerable merit to the argument that the cost of that should lie where it falls, i.e with the negligent party. That argument is strengthened by the wording of s 18(4) which anticipates contemporaneous requests for bond top ups.
That is the outcome in this particular case. It is not fair to now enforce the bond top up retrospectively.
As noted at the hearing I do not consider that will always be the case and a later request for a bond top up will never succeed. The wording of s 18(4) does not in my view permit such a restrictive approach.
Each case will depend on its own facts. The length of the delay will always be a relevant factor. If the notice of the additional requirement for a bond increase was sent promptly after the rent increase notice and before or soon after the rent increased, then the tenant’s argument that the bond top up should not be enforced would be considerably less likely to succeed.
The tenant’s name is not to be published.

Tenancy Tribunal case 4682289 — Exemplary damages at 139 Sunset Road, Mangakakahi, Rotorua 3015

At a glance

Tenancy Tribunal case 4682289 — Exemplary damages at 139 Sunset Road, Mangakakahi, Rotorua 3015

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