What was the outcome of Tenancy Tribunal case 4692349?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4692349?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4692349?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4692349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9498754-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4692349?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4692349?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4692349?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 4692349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9498754-Tenancy_Tribunal_Order.pdf.

18 Martin Avenue, Remuera, Auckland 1050 Tenancy Tribunal Case 4692349 — Leaks

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Reasons

Both parties attended the hearing. Exercising of the tenants’ rights under the Act and the tenancy agreement

The tenants’ substantive application 4634689 was heard by the Tribunal on 6 September 2023, for the following alleged breaches of the tenancy agreement and the Residential Tenancies Act 1986 (“the Act”): a. The premises do not comply with the healthy homes standards (“HHS”); b. The landlord did not provide and maintain the premises in a reasonable state of repair; c. The landlord failed to remedy the breaches when the breaches were brought to its attention; d. The landlord only offered rent relief after the tenants informed the landlord that they intended to take a claim to the Tribunal, and did not receive back dated rent relief to the date the landlord was notified of the breaches; and e. The landlord failed to compensate the tenant for the reasonable expenses incurred by the tenant in repairing the premises.

The decision and orders for application 4634689 were reserved and had not been released as at the date of this order.

The tenants claim the termination notice was issued in retaliation to them exercising their rights under the Act, by filing application 4634689, and are seeking to have the termination notice declared to be of no effect and an unlawful act. 1

Further, the tenants do not believe that the owners of the property have complied with the requirements of s51 of the Act, in that they dispute that the landlord will be able to “begin” the project, or take “material steps” towards doing so, “within 90 days after the termination date” 2. Did the termination notice comply with the requirements of ss51 and 54 of the

Act?

What the parties argued

The tenants confirmed that they were made aware from the beginning of the tenancy that the owners of the property had plans to demolish the premises and rebuild on the site. It was for that reason that they were initially offered a fixed term tenancy of 11 months.

Over the course of the nearly 18-month tenancy, the landlord sporadically communicated with the tenants about the demolition and rebuild project (“the project”) and conveyed to the tenants that the landlords had been happy for the tenancy to continue as they had been unable to commence the project within the original envisaged timeframes due to some unforeseen delays.

The tenants stated that persons from the council had been at the premises at the end of 2022, and again in 2023, and had given them the impression that the project would begin shortly thereafter, but nothing had happened. Then in August 2023, the landlord told the tenants “council consent may continue to be held up” which gave the tenants the impression the project continued to be delayed and their tenancy was not in imminent danger of being terminated before early next year.

The tenant confirmed that a roofer had visited the premises a few times during their tenancy to look at the leaking roof and that on 3 October 2023, the roofer came to the premises again and told the tenants they had been asked to provide the 1 Residential Tenancies Act 1986, s54. 2 As above n1, s51(2)(f). landlord with a further quote for fixing the leaking roof. This led the tenants to conclude that the landlord intended to have the leak fixed in the interim until the owners were ready to commence the project at some later date.

The tenants also confirmed the owners’ architect had visited the premises, on 5 October 2023, to satisfy herself the building plans she was shortly to submit to council would result in a building consent being granted. The tenants thought the building consent process would take until at least the new year to complete, given the landlord had indicated in August 2023 that the owners were experiencing delays in starting the project, as a result of delays in in the building consent process.

The tenants were therefore shocked to receive the 90-day termination notice, 13 days after their substantive claims had been heard by the Tribunal, notifying them that their tenancy would end on 19 December 2023 to enable redevelopment of the premises to commence.

The landlord argued that the timing was coincidental, there was no causal link between the tenants exercising their rights under the Act and its issuance of a genuine and lawful 90-day termination notice, and the owners were in a position to commence the project before 19 March 2024.

Further, the landlord provided evidence to the Tribunal that: 3 a. The owners of the premises engaged an architect, Julian Guthrie, in 2022 to design and manage their project; b. Julian Guthrie Architecture Ltd have received the resource consent approval for the new design and are in the final stages of preparing the building consent documentation to lodge with the council; c. The building consent documentation will be lodged with the council at the end of October 2023, and Julian Guthrie will tender for builders at the same time; d. The owners have approached Cornerstone Demolition to provide a quote for demolishing the existing premises in January 2023, and require possession of the premises to give them time of sell off anything of value from the existing premises and to get gas and power turned off before the premises are demolished in mid-January 2024; e. Julian Guthrie is working to a timetable that has construction at 19 Martin Avenue commencing by the end of January 2024.

It became evident during the hearing that communications from the landlord to the tenants could have been better, and that lack of communication by the owners to 3 Email from Penny McAllum (owner) to Thomas Farmer (landlord), dated 3 October 2023 and email from Julian Guthrie to landlord, dated 9 October 2023, and oral evidence given during the hearing. the landlord have made it challenging for it to have been as communicative as the tenants have rightfully expected, such as: a. Failure to update the tenants in a timely manner on what was being done to rectify the breaches of the landlord’s obligations they had raised with the landlord in the first instance, and raised more latterly in the Tribunal; b. Not being clear with the tenants in August 2023 that significant steps had been taken towards the project being able to be commence in January 2024, and the tenancy was likely to come to an end before the end of the year. This resulted in the tenants turning down another tenancy in the same area that they would have taken but for the misleading information they say they received from the landlord; c. Not making it clear to the tenants that the roofing contractor that came to quote for repairing the leaking roof, on 3 October 2023, was to do with an insurance claim that relates to potential orders being made against the landlord in relation to application 4634689 and is not indicative of the owners’ intention to renovate or repair the current premises; and d. Not keeping the tenants informed of what progress had been made with the owners’ insurers, in relation to the exacerbated HHS issues that resulted from Cyclone Gabrielle in February 2023, and whether any urgent repairs would be carried out to the premises in the intervening period until the project was ready to commence.

These communications issues have led to the tenants concluding the termination notice is retaliatory, that the project will take considerably longer to start than 19 March 2023 and the owners intend to have the roof leaks fixed in the interim before the project commences, so the premises can continue to be tenanted in the meantime. As such, they have sought orders that the 90-day termination notice is retaliatory, an unlawful act and of no effect. The law

The relevant provisions of the Act are: S51 Termination by notice (2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a) the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition; or (b) the owner is required, under an unconditional agreement for the sale of the premises, to give the purchaser vacant possession; or (c) the landlord is not the owner of the premises and the landlord’s interest in the premises is due to end; or (d) the landlord or owner has acquired the premises to facilitate the use of nearby land for a business activity and— (i)that fact is clearly stated in the tenancy agreement; and (ii)the premises are required to be vacant of residential tenants to facilitate that use; or (e) the premises are to be converted into commercial premises for at least 90 days by the landlord or owner; or (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and. (ii) premises are to be demolished and the demolition is to begin, or material steps towards it are to be taken, within 90 days after the termination date. (2A) In subsection (2)(f) and (g), taking a material step means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step S54 Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.

The Tribunal’s powers under s 54 to declare a termination notice to be of no effect requires proof on the balance of probabilities that: The giving of the notice [in this case by the landlord] was motivated wholly or partly by the proposed exercise of a tenant of any right ... conferred by the tenancy agreement ....

Section 51 of the Act allows tenants to make claims in the Tribunal for alleged breaches by the landlord, without fear the landlord will retaliate by ending their tenancy, wholly or partly because the tenants have exercised their rights and have sought remedies conferred on them by the tenancy agreement and/or any statute and/or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.

If the landlord issuance of the termination notice was motivated by reason of the tenants asserting their rights, that need not have been the landlord’s sole motivation. It can be one of several reasons that motivated the landlord to otherwise lawfully exercise its right to terminate the tenancy, under s51.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986. Application of the law to the facts

I have considered all the evidence provided by the parties, as outlined above in paragraphs [8] to [17], and am satisfied: a. The landlord has established, on the balance of probabilities, that the project will have begun, or material steps towards it beginning will have been taken, within 90 days of the tenancy ending on 19 December 2023; b. The termination notice meets the requirements of s51(3) and (4) and the reason given for the termination is genuine; and c. The tenants have not established that the termination notice was given wholly or partially because they asserted their contractual or statutory based rights by making application 4634689 to the Tribunal and have not proven the termination notice fails to comply with the requirements of s51 of the Act.

Consequently, the tenants’ claims are dismissed. Filing Fee

Because Yue Zhang and Mingbo Gao have not succeeded with their claims the filing fee will not be reimbursed. This cost lays where it falls.

Reasons

Both parties attended the hearing. Exercising of the tenants’ rights under the Act and the tenancy agreement

The decision and orders for application 4634689 were reserved and had not been released as at the date of this order.

Act?

What the parties argued

Consequently, the tenants’ claims are dismissed. Filing Fee

Because Yue Zhang and Mingbo Gao have not succeeded with their claims the filing fee will not be reimbursed. This cost lays where it falls.

Tenancy Tribunal case 4692349 — Leaks at 18 Martin Avenue, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4692349 — Leaks at 18 Martin Avenue, Remuera, Auckland 1050

At a glance

Claims & awards

Order

Reasons

Act?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Act?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions