What was Tenancy Tribunal case 4684192 about?

The tribunal order states: The tenant’s name and identifying details, including the apartment number

How much money was awarded in case 4684192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684192?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4684192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9921211-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4684192 about?

The tribunal order states: The tenant’s name and identifying details, including the apartment number

How much money was awarded in case 4684192?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4684192?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Unit Titles.

Where can I read the official tribunal order for case 4684192?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9921211-Tribunal_Order_Redacted.pdf.

Apartment [number suppressed], 15 Whitaker Place, Tenancy Tribunal Case 4684192 — Mould & damp

Order

The tenant’s name and identifying details, including the apartment number must not be published.
The tenant’s claims are dismissed.

Reasons

The tenant attended the hearing in person. 1
Iota’s General Manager, Steven Zhang and its Chief Financial Officer, Edward Lee attended for the landlord.
The tenant claims that the landlord terminated her tenancy for discriminatory reasons in contravention of the Human Rights Act 1993, and the notice was given without proper grounds. 1 This is a reserved decision. I heard this case on 2 February 2024. Background
The apartment is one of 145 units in the Columbia Apartments in Whitaker Place, near to Auckland University and Auckland University of Technology.
Iota holds a 20-year commercial lease over 120 of the units, including the premises. The building is intended mainly for student accommodation, but some of Iota’s tenants are not students.
The tenancy commenced as a fixed term on 13 September 2021 with an end date of 13 September 2022. Prior to its expiry, the fixed term was extended for another year until 13 September 2023.
In January and February 2023, the ground floor was flooded during the Auckland Anniversary Weekend and Cyclone Gabrielle rainfall events in January 2023, which damaged the reception area.
On 14 August 2023, Iota gave the tenant a termination notice on the grounds that the landlord wanted to renovate the apartment and “we believe it would not be reasonably practicable for the tenant to live there while the work is being done”. The tenancy formally ended early on 30 August 2023.
The tenant queried the notice and asked why she could not remain in the premises while the work was done, and why she could not move back in after the works were done.
Iota did not withdraw its notice and was not prepared to offer her the apartment back or another apartment. It only said that she could apply for a tenancy for one of its apartments and it would be considered. Because the Ministry of Social Development assist the tenant to pay her rent, its input would have been required for a new application.
Iota planned significant repair and renovation work to many apartments and the common areas at the time the tenancy was due to end. However, the work Iota did on the tenant’s apartment was relatively minor. The walls were repainted. The stove and rangehood were replaced, and some routine repairs and maintenance were done.
Iota gave the tenant an excellent reference, saying among other things, “Based on her exemplary behaviour...I have no hesitation in recommending [the tenant] as an outstanding tenant.”
The premises remained vacant for about five months. They were relet to a foreign student on 31 January 2024, for $480.00 per week, $140.00 per week more than the tenant was paying.
The tenant believes that Iota terminated the tenancy due to her race, sex, religion, and disability.
In her application she states: I have been subjected to the most horrific abuse by these LYING abusive and sneaky Chinese managers. I was the only Nz European female in a building of approximately 300+ mostly 75% Chinese speaking foreigners, the rest Nz Polynesian, Indian & a few Nz European males...Giving me 90 days notice saying they are doing “renovations” is a complete LIE...Discrimination is a crime!!
Iota denies the claim and says that the tenant’s apartment was one of the many it manages. It was identified as being an apartment that needed significant work, so it decided to end the tenancy before the fixed term came up for renewal. Its decision had nothing to do with the tenant, with whom they were happy.
The Tribunal needs to decide: a. Did Iota terminate the tenancy by reason of a prohibited ground? b. Did Iota terminate the tenancy knowing that it did not have grounds to do so?

Did Iota terminate the tenancy by reason of a prohibited ground?

Legal principles

A landlord must not discriminate against a tenant in relation to the grant, renewal, variation, or termination of a tenancy, in contravention of the Human Rights Act 1993. 2
Section 12 of the Residential Tenancies Act 1986 (RTA), relevantly provides: 12 Discrimination to be unlawful act (1) Each of the following is hereby declared to be an unlawful act: (a) discrimination against any person in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993...
Section 53 of the Human Rights Act 1993 (HRA) provides: 2 Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A of the Residential Tenancies Act 1986 (RTA). 53 Land, housing, and other accommodation (1) It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal,— ... (e) to terminate any estate or interest in land or the right of any person to occupy any land or any residential or business accommodation,— ... by reason of any of the prohibited grounds of discrimination.
The prohibited grounds of discrimination include sex, race, colour, and religion.
The elements of a claim under s 53 relevantly include: a. A right to occupy residential accommodation. b. Termination of the right to occupy. c. The termination was “by reason” of a prohibited ground.
In this case, only “c” is in dispute. The potential grounds include sex, race, colour, ethnic or national origins, religious belief, ethnic belief, and disability. Tenant’s case
The tenant says that she was an ideal tenant who looked after the premises well. However, the managers and other tenants at the building treated her differently because she was not Chinese. The Chinese people who made up the bulk of tenants and management laughed at her. She generally could not understand what they were saying, but another tenant at the building told her to “go”.
The staff at the reception desk would look at her, laugh, and cough when she walked by. Mr Zhang evidently said they were coughing due to mould on the desk. He mentioned that people were “smelly”, which was a comment the tenant took as directed at her, and entirely untrue.
The tenant believes the manager regularly entered her apartment when she was out and stole her belongings and wrote on her bathroom mirror. He was ideally placed to do that because he could use the building’s security cameras to monitor her movements. The entries ceased once she got her own security camera.
She says the manager is a “sneaky liar” and that there is a history of similar episodes in the building. The managers are part of a group of “Chinese thugs”. She feels they subjected her to “mass group hatred”.
She believes the managers are also behind the theft of her mail. She alleges the managers failed to take sufficient action against the niece of another tenant who assaulted her with a vacuum cleaner.
The tenant is certain that all of the tenants who were given notice were New Zealanders, and all the new tenants will be Chinese. Landlord’s response
The landlord claims it did not terminate the tenancy for discriminatory reasons. Rather, as the leaseholder of many apartments and also the body corporate manager, it realised it would be economic to refresh the apartments at the same time as the common areas and exterior of the building were attended to.
Mr Zhang adamantly denies he ever entered the tenant’s apartment without permission, let alone took anything. The managers say they diligently kept the tenant’s mail secure and did not steal anything.
The managers deny they are “sneaky liars” or “Chinese thugs” (comments that they identify as, ironically, being discriminatory). They took proactive steps in respect to the assailant (who was not Chinese), even though she was not an Iota tenant.
Iota is also the building Body Corporate’s manager. The building was tired and had suffered damage from the massive Auckland Anniversary Weekend and Cyclone Gabrielle downpours in January and February of 2023.
It was systematically renovating and maintaining the building and its apartments en masse to create economies of scale. It had employed two new fulltime staff members to address the renovation work. The work on the apartments was done progressively, with several being worked on simultaneously at any particular time.
To get the work it wanted done, it gave 20 to 30 termination notices. None of those notices were given on the basis of characteristics of the tenants such as race or sex. The only criterion were based on the need for maintenance and renovation.
The landlord claims that incoming tenants are also chosen on grounds other than the prohibited grounds under the HRA. Discussion
There is no objective evidence that proves the other tenants, or the managers ridiculed the tenant when she passed through the common areas. The tenant did not understand what the tenants and managers were saying. The only evidence is the tenant’s subjective interpretation of what are objectively ambiguous facts.
There is not a skerrick of evidence that it was Mr Zhang or anyone from Iota who entered the tenant’s apartment and took things or wrote on the tenant’s mirror. The tenant’s belief is based on no more than that Iota had the opportunity to do these things. That does not approach the standard of proof on the balance of probabilities. It is unlikely to have been the case. I dismiss the allegations.
Mr Zhang says that there was a mould problem in the reception area after the flooding, which did create odour problems. He denies every suggesting it was the tenant who smelt bad. This is a “she says, he says” situation that cannot be resolved due to lack of other evidence.
The tenant claims the tenants given notice were non-Chinese and the new tenants are all Chinese. Iota denies that. I do not have evidence of the nationality or race of ingoing or outgoing tenants, so it is not proven that Iota chooses tenants on race or nationality-based reasons.
One obvious fact that undermines the tenant’s claim is that Iota gave her a tenancy for a year and then extended for another year. If it were choosing tenants on a discriminatory basis against New Zealand females, why would it choose a New Zealand female tenant in the first place, let alone renew the tenancy as it did? The tenant submitted that Iota enjoyed tormenting her. However, I do not find that very probable.
One area of evidence that gives the Tribunal pause for thought was that Mr Lee said that the issue of renovating the individual apartments was raised at a Body Corporate Annual General Meeting in 2023. When asked to provide a copy of the minutes confirming that discussion occurred, Mr Lee responded that the minutes did not record the discussion because the owners were concerned they might be used as evidence of discriminatory behaviour because the owners had faced similar accusations before.
The Tribunal asked Mr Lee why the owners would be worried about allegations of discrimination if the minutes recorded that the owners wanted to give tenants notice so renovations could be done? Recording that dialogue in the minutes would have strengthened a response to claims of discrimination, not weakened it.
Mr Lee insisted there was nothing sinister in the omission from the minutes. It was simply what the owners requested. The owners never said anything that indicated they wanted to give any tenant notice based on their race or anything else about them. They just didn’t want to be accused of that.
in my view, the omission of the discussion from the minutes is not a “smoking gun” that proves discrimination. The tenant submitted that rather than a smoking gun it was an “atomic bond”. However, I remain of the view that omitting to record the discussion is equivocal and vague and therefore (without more) not enough to prove that a prohibited ground was engaged in the decision to terminate the tenancy.
I found Mr Zhang and Mr Lee’s evidence plausible. They appeared organised, efficient, and focussed on running Iota effectively, unencumbered by preconceptions about tenants’ traits such as race, or personality.
They tenant made personal allegations against Mr Zhang and Mr Lee, but they retained their equanimity throughout the hearing. That they kept their composure and betrayed no dislike towards the tenant was consistent with an openminded attitude to others and inconsistent with their being prejudiced against non-Chinese.
The tenant did make some sweeping comments based on other people’s race and nationality. If Mr Zhang and Mr Lee had spoken in similar terms, I would have likely been inclined to finding there was substance in the tenant’s claims of discrimination, but they did not. Conclusion
I am not satisfied on the balance of probabilities that Iota’s decision to terminate the tenancy was by reason of a prohibited ground of discrimination.
The tenant’s discrimination claim is not proven, and the claim is dismissed.

Did Iota terminate the tenancy knowing that it did not have grounds to do so?

The tenant claims that Iota gave her notice on spurious grounds. It purported to terminate for extensive renovation work, but it never intended to do extensive renovation work and it never did.
Under s 60AA of the RTA a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so. 3
Under s 51(2)(f) of the RTA landlords may give notice where it wants to carry out extensive repairs and maintenance “it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken”.
It transpired that the work that was done in the apartment was relatively minor. The walls were repainted. The rangehood and stove were replaced. The kitchen sink and the toilet were repaired.
A few months later, the landlord relet the apartment was for 40 percent more rent than the tenant had paid.
One probable factor for the marked increase was that the bottom fell out of the market when foreign students could not travel into New Zealand during the Covid-19 lockdowns of 2020 and 2021, greatly reducing the demand for student accommodation such as the premises. Now in 2024, the student accommodation market has bounced back.
There is a suspicion that the discussion that was omitted from the minutes was about getting rid of tenants like the tenant who had limited income to pay the much higher rents that could be commanded with the return of foreign students. This motivation is more attuned to the managers’ apparent priorities than discrimination. However, the Tribunal cannot conclude that was the case on the balance of probabilities on the evidence before it.
It transpired that the tenant could have practicably remained in the apartment while the work was done, but that does not mean the landlord knew it was not entitled to give the tenant notice to carry out significant repairs and maintenance.
In this case, Iota was carrying out repairs and maintenance en masse, so it is plausible that in good faith it erred on the side of giving notice to economically achieve its goal of upgrading all of the apartments and common areas to a good standard.
Therefore, I am not persuaded on the balance of probabilities that Iota cynically gave the tenant notice on specious grounds.
This claim is dismissed. Non-publication 3 Breaching that obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See RTA, s 60AA and Schedule 1A.
The Tribunal may, on its own initiative, having regard to the interests of the parties and to the public interest, order that the name or any identifying particulars of any party not be published.
Publishing the tenant’s name could make it more difficult for her to obtain tenancies in the future. The tenant’s expression of anxiety about being non- Chinese in a predominantly Chinese setting could be interpreted negatively by some members of the community and expose her to opprobrium. The tenant suffers from anxiety and PTSD so is vulnerable. The tenant’s interests and the public interest favours non-publication of the tenant’s name and identifying particulars.
The Tribunal orders non-publication of the tenant’s name and the apartment number.

Tenancy Tribunal case 4684192 — Mould & damp at Apartment [number suppressed], 15 Whitaker Place,

At a glance

Tenancy Tribunal case 4684192 — Mould & damp at Apartment [number suppressed], 15 Whitaker Place,

At a glance

Claims & awards

Order

Reasons

Did Iota terminate the tenancy by reason of a prohibited ground?

Did Iota terminate the tenancy knowing that it did not have grounds to do so?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did Iota terminate the tenancy by reason of a prohibited ground?

Did Iota terminate the tenancy knowing that it did not have grounds to do so?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions