What was Tenancy Tribunal case 4694752 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $20.44 immediately, being the filing

How much money was awarded in case 4694752?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4694752?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4694752?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9611601-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4694752 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $20.44 immediately, being the filing

How much money was awarded in case 4694752?

The reconciled net award was $20.44.

What type of tenancy dispute was case 4694752?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4694752?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9611601-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4694752 — Exemplary damages

Order

[The landlord/s] must pay [The tenant/s] $20.44 immediately, being the filing application fee.

Reasons

Both parties attended the hearing.
On 25 September 2023, the landlord gave the tenant a notice ending the tenancy on 27 November 2023. The tenant claims the notice is retaliatory.
For a notice 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.
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 (RTA).
The tenant did not specifically seek exemplary damages in her application. Regardless, having considered the submissions, any unlawful act here would not have likely attracted an award of exemplary damages.
The actual notice cited referenced s60A RTA but also confirmed this was a periodic tenancy. I accept the drafting was in error and should be read as meaning s 51(1)(a) RTA. This was a technical issue, but it had important ramifications on any application for order per s 54 as this section only applies to s 51 terminations – not s 60A.
A second technical issue was the need to confirm the owners on the record of title. The Property Management Agreement records both a company name and the surname of the owners. If the owner was a company, then the termination provision of s 51(1)(a) cannot apply as a company is an entity and it cannot have family.
Fortunately, the tenant was able to access LINZ via a contact and confirmed the owners are the two individuals, not the company. Therefore, the notice to terminate was valid and any reason to interfere with that needed to be determined. The hearing continued. Background
This tenancy was the subject of a prior order (7 September 2023) after both parties lodged applications. That order was suppressed and that suppression continues with this order for the same reasons.
The upshot of the last order was a reduction in rent to a Tribunal determined market value ($40 reduction). The landlord had requested termination at that time but this was declined, as was any tenant compensation.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
Often there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice as in this case, it may lead to a reasonable inference that the landlord was at least partly motivated by the tenant exercising her right in issuing a breach notice. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.
The owners were overseas at the date of the hearing. A request for adjournment was declined. As the end date per the notice was some three weeks from when any determination might be made it would be unfair on the tenant to delay. As an alternative, three parents of the owners appeared at the hearing. No formal requests for representation had been received but after preliminary discussions and the agreement of the tenant, I allowed them to remain and partake. Given any determination of retaliatory notice requires an assessment of motivation, their input, along with a written submission from the owners, was useful. A short video by the owners was made but unable to be played. It would appear to align with their written submission.
Essentially, the owners explained their motivation as financial. Their submission outlined some of their outgoings, supported by evidence such as rate demands and mortgage liabilities. The submission was silent on outgoings and any net tax position (the premises would appear to qualify as a new build for tax purposes). A second reason cited was the need to perform some maintenance on their home that would require them to vacate (redoing flooring primarily).
The detail provided by the landlord is insufficient for a full financial hardship assessment. I did question the landlord if an alternative approach via a s 55B application for termination (unreasonable to require landlord to continue with tenancy) was considered. Such an application would have ensured a better financial disclosure and avoided any possible tenant recourse via s 54. The landlord said no as the grounds in the notice were accepted as reasons. I remain uncertain if there was any advice to the owners regarding potential retaliatory claim by the tenant.
I reviewed further the evidence and considered the submissions, including the various options for the owners as discussed to achieve some financial mitigation as sought.
I am not persuaded that the whole reason the termination notice was issued was due to the financial or maintenance needs as submitted. I accept my last order reduced the annual rent take by approximately $2000.00 but the mortgage, and associated landlord costs, with two rental income streams identified, appears at worst cashflow neutral. That is not conclusive but is used as an attempt to contextualise the notice to terminate and motivations.
To accept the cited reasons as wholly the motivation for the notice would ignore the previously traversed and unresolved issues between the parties who are also neighbours, as well the proximity of the last order and the notice to terminate. As I stressed at the hearing, Parliament inserted “partly” motivated and this lower threshold is sufficient to mean that the Tribunal, if so satisfied it more than likely some partial motivation existed, shall declare the notice to be of no effect.
It is not usual practice for the Tribunal to issue a stay on any future notice to terminate but given the history in this tenancy, without binding any future adjudicator, I would not envisage any subsequent notice to terminate served on these same grounds until March 2024. However, each case is considered on its merits and circumstances. Application filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Other
As discussed at the hearing it is open to both parties to reach a mutually advantageous way forward. I would encourage that to be explored.

Order

[The landlord/s] must pay [The tenant/s] $20.44 immediately, being the filing application fee.

Reasons

Both parties attended the hearing.
On 25 September 2023, the landlord gave the tenant a notice ending the tenancy on 27 November 2023. The tenant claims the notice is retaliatory.
For a notice 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.
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 (RTA).
The tenant did not specifically seek exemplary damages in her application. Regardless, having considered the submissions, any unlawful act here would not have likely attracted an award of exemplary damages.
The actual notice cited referenced s60A RTA but also confirmed this was a periodic tenancy. I accept the drafting was in error and should be read as meaning s 51(1)(a) RTA. This was a technical issue, but it had important ramifications on any application for order per s 54 as this section only applies to s 51 terminations – not s 60A.
A second technical issue was the need to confirm the owners on the record of title. The Property Management Agreement records both a company name and the surname of the owners. If the owner was a company, then the termination provision of s 51(1)(a) cannot apply as a company is an entity and it cannot have family.
Fortunately, the tenant was able to access LINZ via a contact and confirmed the owners are the two individuals, not the company. Therefore, the notice to terminate was valid and any reason to interfere with that needed to be determined. The hearing continued. Background
This tenancy was the subject of a prior order (7 September 2023) after both parties lodged applications. That order was suppressed and that suppression continues with this order for the same reasons.
The upshot of the last order was a reduction in rent to a Tribunal determined market value ($40 reduction). The landlord had requested termination at that time but this was declined, as was any tenant compensation.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right.
Often there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice as in this case, it may lead to a reasonable inference that the landlord was at least partly motivated by the tenant exercising her right in issuing a breach notice. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
The Tribunal in Easton v Marks Auckland TT 229/87, 27 May 1987 considered the meaning of the verb “motivate”. It considered the Webster’s dictionary definition “to furnish with a motive or motives; to give impetus to; to insight; to impel” and held that the landlord was not incited or impelled by the tenant’s actions. The Tribunal in that case noted that: It is one thing to say that an owner of a property has grown somewhat tired of his property being tenanted to persons, it is another thing to say that the tenants gave impetus to, or incited, or impelled the owner to give the notice to quit.
The owners were overseas at the date of the hearing. A request for adjournment was declined. As the end date per the notice was some three weeks from when any determination might be made it would be unfair on the tenant to delay. As an alternative, three parents of the owners appeared at the hearing. No formal requests for representation had been received but after preliminary discussions and the agreement of the tenant, I allowed them to remain and partake. Given any determination of retaliatory notice requires an assessment of motivation, their input, along with a written submission from the owners, was useful. A short video by the owners was made but unable to be played. It would appear to align with their written submission.
Essentially, the owners explained their motivation as financial. Their submission outlined some of their outgoings, supported by evidence such as rate demands and mortgage liabilities. The submission was silent on outgoings and any net tax position (the premises would appear to qualify as a new build for tax purposes). A second reason cited was the need to perform some maintenance on their home that would require them to vacate (redoing flooring primarily).
The detail provided by the landlord is insufficient for a full financial hardship assessment. I did question the landlord if an alternative approach via a s 55B application for termination (unreasonable to require landlord to continue with tenancy) was considered. Such an application would have ensured a better financial disclosure and avoided any possible tenant recourse via s 54. The landlord said no as the grounds in the notice were accepted as reasons. I remain uncertain if there was any advice to the owners regarding potential retaliatory claim by the tenant.
I reviewed further the evidence and considered the submissions, including the various options for the owners as discussed to achieve some financial mitigation as sought.
I am not persuaded that the whole reason the termination notice was issued was due to the financial or maintenance needs as submitted. I accept my last order reduced the annual rent take by approximately $2000.00 but the mortgage, and associated landlord costs, with two rental income streams identified, appears at worst cashflow neutral. That is not conclusive but is used as an attempt to contextualise the notice to terminate and motivations.
To accept the cited reasons as wholly the motivation for the notice would ignore the previously traversed and unresolved issues between the parties who are also neighbours, as well the proximity of the last order and the notice to terminate. As I stressed at the hearing, Parliament inserted “partly” motivated and this lower threshold is sufficient to mean that the Tribunal, if so satisfied it more than likely some partial motivation existed, shall declare the notice to be of no effect.
It is not usual practice for the Tribunal to issue a stay on any future notice to terminate but given the history in this tenancy, without binding any future adjudicator, I would not envisage any subsequent notice to terminate served on these same grounds until March 2024. However, each case is considered on its merits and circumstances. Application filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Other
As discussed at the hearing it is open to both parties to reach a mutually advantageous way forward. I would encourage that to be explored.

Tenancy Tribunal case 4694752 — Exemplary damages

At a glance

Tenancy Tribunal case 4694752 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions