What was Tenancy Tribunal case 4723429 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 4723429?

Property Damage: $2,166.67 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4723429?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4723429?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10155484-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4723429 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 4723429?

Property Damage: $2,166.67 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4723429?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4723429?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10155484-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4723429 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4723429 — net $2,187.11 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (unlawful notice-s60AA	$2,166.67	(unlawful notice-s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,187.11
Total payable by Landlord to Tenant	$2,187.11

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
David Mueller must pay the tenant $2,187.11 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenant applied for exemplary damages for the landlord’s alleged attempt to terminate his tenancy without grounds and reimbursement of the filing fee.
The landlord challenged the Tribunal’s jurisdiction, claiming it was a flat sharing arrangement and not a tenancy. Background
The tenant rented a room from the head tenant from 11 September 2023 to 21 October 2023 at $200 per week plus other expenses of around $4.46 per day.
The head tenant lives in the premises, acts as a property manager for the owners who reside overseas, and sub-lets bedrooms to two other tenants that share the facilities and common areas of the premises.
The other two tenants are slightly older than the tenant. The owner gave evidence that this appears to have led to some issues of the head tenant feeling unsafe and both other tenants claiming the tenant was rude, used their things without asking and having people over that made them feel uncomfortable.
On 15 October 2023, the owner gave the tenant two weeks’ notice terminating the tenancy for the claimed purpose of him coming back to live in New Zealand and needing the tenants room. Jurisdiction The law and whether applicant
Section 66B of the RTA reads: “In this Part, unless the context otherwise requires, boarding house means residential premise: (a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b)occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant and the owner confirmed that there have never been more than three persons residing in the premise at any one time. Therefore, the premise does not meet the s66B definition of a boarding house.
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 6 Totara Views Drive, Red Beach (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
The owner lived at the premise, and it was his principal place of residence until he went overseas. When he left New Zealand, he let the premises to the head tenant. As such, the section 5(1)(n) exception would have applied to any flat mates the owner brought into the premises to live with him and his family.
The parties confirmed that the landlord/owner does not live at the premises and the premises are not his principal place of residence. Therefore, the section 5(1)(n) exception does not apply.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The landlord and head tenant granted the right to the tenant to rent a room and to share the other household facilities with one other tenant and the head tenant. The head tenant failed to make the relationship clear in the agreement she asked the tenant to sign. Consequently, the relationship is not clear.
The landlord/owner argue that the tenant signed a flat sharing agreement and agreed to rent the room under those terms contained and should be held to those terms, including the giving of two weeks’ notice terminating the flat sharing arrangement.
Section 11 of the RTA states “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted”.
The terms of the agreement do not reflect the true nature to the relationship between the head tenant and the tenant. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
The tenant has successfully proven the relationship he had with the landlords was one of tenant and landlord and the RTA provisions that relate residential tenancies apply.

Was the tenancy ended by the giving of an unlawful notice?

The tenant claims that the landlord has breached his obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord gave the tenant 2 weeks’ notice on 15 October 2023 terminating the tenancy on 29 October 2023. He did so after receiving a call from the head tenant on 15 October 2023 raising concerns about the tenant bringing persons to the house that made her and the other tenant feel uncomfortable and unsafe, the tenant using their personal property without their consent and being rude and untidy.
The head tenant gave a witness statement that confirmed that she had raised these concerns with the landlord and asked for his assistance to remedy the situation.
The landlord claimed that he was having trouble in his marriage and his daughter was very unwell and he thought he was going to have to return to New Zealand urgently but has still not returned as thought. He stated that the situation was very fluid and changed quite quickly.
The tenant provided an advertisement that the head tenant placed on Trademe for his room the day after he moved out, being 22 October 2023. This was one week after the tenant had been given notice that the landlord was moving back into the room.
I find that on the balance of probabilities the issues the head tenant claims she was having with the tenant was the justification the landlord used to move the tenant and the reason he gave the tenant was never bonafide or genuine. In his evidence the landlord spoke at length about the tenant causing issues for a long-term and good long-term friend that looks after the property for him and he didn’t want her to feel unsafe or unsettled in the house. I find that this was real reason the tenancy was terminated so quickly after it commenced.
S51(1) (a) of the RTA states “A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if 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”.
The landlord failed to provide the statutorily required 63 days’ notice and did not reside in the premises 90 days after the termination date. I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find it would be just to require the landlord to pay a sum of $2,166.67 in exemplary damages (one third of the maximum penalty available) because: a. The landlord failed to give the statutorily required notice to the tenant; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice and without lawful grounds; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy lawfully and with lawful grounds to protect tenant’s interests. Reimbursement of the filing fee
Because the applicant has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4723429 — net $2,187.11 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (unlawful notice-s60AA	$2,166.67	(unlawful notice-s60AA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,187.11
Total payable by Landlord to Tenant	$2,187.11

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
David Mueller must pay the tenant $2,187.11 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenant applied for exemplary damages for the landlord’s alleged attempt to terminate his tenancy without grounds and reimbursement of the filing fee.
The landlord challenged the Tribunal’s jurisdiction, claiming it was a flat sharing arrangement and not a tenancy. Background
The tenant rented a room from the head tenant from 11 September 2023 to 21 October 2023 at $200 per week plus other expenses of around $4.46 per day.
The head tenant lives in the premises, acts as a property manager for the owners who reside overseas, and sub-lets bedrooms to two other tenants that share the facilities and common areas of the premises.
The other two tenants are slightly older than the tenant. The owner gave evidence that this appears to have led to some issues of the head tenant feeling unsafe and both other tenants claiming the tenant was rude, used their things without asking and having people over that made them feel uncomfortable.
On 15 October 2023, the owner gave the tenant two weeks’ notice terminating the tenancy for the claimed purpose of him coming back to live in New Zealand and needing the tenants room. Jurisdiction The law and whether applicant
Section 66B of the RTA reads: “In this Part, unless the context otherwise requires, boarding house means residential premise: (a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b)occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant and the owner confirmed that there have never been more than three persons residing in the premise at any one time. Therefore, the premise does not meet the s66B definition of a boarding house.
Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 6 Totara Views Drive, Red Beach (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
The owner lived at the premise, and it was his principal place of residence until he went overseas. When he left New Zealand, he let the premises to the head tenant. As such, the section 5(1)(n) exception would have applied to any flat mates the owner brought into the premises to live with him and his family.
The parties confirmed that the landlord/owner does not live at the premises and the premises are not his principal place of residence. Therefore, the section 5(1)(n) exception does not apply.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The landlord and head tenant granted the right to the tenant to rent a room and to share the other household facilities with one other tenant and the head tenant. The head tenant failed to make the relationship clear in the agreement she asked the tenant to sign. Consequently, the relationship is not clear.
The landlord/owner argue that the tenant signed a flat sharing agreement and agreed to rent the room under those terms contained and should be held to those terms, including the giving of two weeks’ notice terminating the flat sharing arrangement.
Section 11 of the RTA states “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted”.
The terms of the agreement do not reflect the true nature to the relationship between the head tenant and the tenant. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
The tenant has successfully proven the relationship he had with the landlords was one of tenant and landlord and the RTA provisions that relate residential tenancies apply.

Was the tenancy ended by the giving of an unlawful notice?

The tenant claims that the landlord has breached his obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord gave the tenant 2 weeks’ notice on 15 October 2023 terminating the tenancy on 29 October 2023. He did so after receiving a call from the head tenant on 15 October 2023 raising concerns about the tenant bringing persons to the house that made her and the other tenant feel uncomfortable and unsafe, the tenant using their personal property without their consent and being rude and untidy.
The head tenant gave a witness statement that confirmed that she had raised these concerns with the landlord and asked for his assistance to remedy the situation.
The landlord claimed that he was having trouble in his marriage and his daughter was very unwell and he thought he was going to have to return to New Zealand urgently but has still not returned as thought. He stated that the situation was very fluid and changed quite quickly.
The tenant provided an advertisement that the head tenant placed on Trademe for his room the day after he moved out, being 22 October 2023. This was one week after the tenant had been given notice that the landlord was moving back into the room.
I find that on the balance of probabilities the issues the head tenant claims she was having with the tenant was the justification the landlord used to move the tenant and the reason he gave the tenant was never bonafide or genuine. In his evidence the landlord spoke at length about the tenant causing issues for a long-term and good long-term friend that looks after the property for him and he didn’t want her to feel unsafe or unsettled in the house. I find that this was real reason the tenancy was terminated so quickly after it commenced.
S51(1) (a) of the RTA states “A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if 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”.
The landlord failed to provide the statutorily required 63 days’ notice and did not reside in the premises 90 days after the termination date. I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find it would be just to require the landlord to pay a sum of $2,166.67 in exemplary damages (one third of the maximum penalty available) because: a. The landlord failed to give the statutorily required notice to the tenant; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice and without lawful grounds; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy lawfully and with lawful grounds to protect tenant’s interests. Reimbursement of the filing fee
Because the applicant has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4723429 — Exemplary damages

At a glance

Tenancy Tribunal case 4723429 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Was the tenancy ended by the giving of an unlawful notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the tenancy ended by the giving of an unlawful notice?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions