What was the outcome of Tenancy Tribunal case 4738471?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4738471?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4738471?

The dispute type was not classified.

Where can I read the official tribunal order for case 4738471?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9790486-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4738471?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4738471?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4738471?

The dispute type was not classified.

Where can I read the official tribunal order for case 4738471?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9790486-Tenancy_Tribunal_Order.pdf.

25B Philson Terrace, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4738471 — Tenancy dispute

Order

The application is dismissed.

Reasons

The Tribunal must consider an application filed by the tenants, seeking an order that the termination notice issued by the landlord is a retaliatory notice. In this case the premises were on the market to be sold, but after an offer fell through, the landlord withdrew the premises from the market and issued a termination notice on the ground that the premises were to be put on the market within 90 days of the termination.
Both parties appeared at the hearing today.

BACKGROUND

The background in this case is not in dispute. In summary: a. The tenancy commenced on 19 September 2022, and is a periodic tenancy. b. On 20 September 2023 (a year later) the landlords put the premises on the market for sale. c. In October 2023 there was an offer made for the purchase of the premises, but the landlord reports that fell through. d. The evidence is that the tenants would permit open homes, and for prospective purchases to come into the premises for viewings, but that the tenants elected to be present in the premises at those times. e. On 7 November 2023 the landlord withdrew the premises from the market, and then gave the tenants a notice ending the tenancy as of 5 February 2024 on the basis that: The premises are to be put on the market by the owner within 90 days after the termination date (as above) for the purposes of sale or other disposition. f. On 7 December 2023, the tenants gave a 28 day notice ending the tenancy.
I note for completeness that I have adjudicated earlier claims filed by the tenants against the landlord (see order of 2 November 2023). One of the claims from the tenants was that the landlord did not notify them that the premises were to be placed on the market. I found that there was written evidence that the landlord had notified the tenants the premises were to be put on the market, prior to the premises going on the market on 20 September 2023. I will refer to this earlier order further below.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, and corroborating documents are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

TENANTS CASE

The tenant states that the termination notice was a retaliatory termination notice.
The tenants consider that the notice was given on the basis that the tenants were exercising their rights in relation to the open homes and viewings. The tenant refer to information found on the Tenancy Services website which confirmed that a landlord could not give notice to require an open home.
In response to an email provided from the Real Estate Agent, of 5 December 2023, the tenant considered the Agents comments were unduely harsh, as it was their right to be present in the premises during open homes.
The tenant considers that they did a good job to present the house, and that they did not refuse to allow open homes or viewings. The tenant stated that they did not refuse any open homes, and they were willing to have “one or two more but are we expected to have them every weekend?”

LANDLORDS CASE

The landlords confirmed that the premises were on the market, and then it was determined that the house would go off the market, and that the tenancy would be terminated, and then later put on the market again when the conditions for a sale were better.
The landlord confirmed that there had been an offer for the premises, but that fell through. The landlord considers that the tenants have not been supportive with allowing open homes to go ahead.
The landlord states the advice they received was that given the premises had not been sold, they should remove the premises from the market, and to put it on the market again at a later date.
The landlords confirmed that the premises have not since gone back on the market, but they have spoken to Real Estate agents.
The landlords emphasised that the reason they need to sell the house is because of financial reasons.

ANALYSIS

I begin by noting that the grounds upon which a landlord can terminate a tenancy are limited, and are set out in section 51 of the RTA. One of those grounds in subsection 2(a) includes when: 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;
On the face of it therefore, the landlord can terminate the tenancy if the premises are to go on the market within 90 days of the tenancy ending. However the tenants position is that the notice that was given, would be a retaliatory termination notice.
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory if: In giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised 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.
The essential element of a retaliatory notice is the issuing of it in response to a tenant asserting a right, power, authority etc, but it need not be the sole motivation, provided the landlord was partially motivated by the tenant asserting the right, the notice would be retaliatory.
In my assessment, the tenant has not established that the termination notice was given on the basis of the tenants exercising, or proposing to exercise any right, power, authority or remedy or in relation to a complaint.
I accept the landlords evidence that the premises are being sold for genuine financial reasons. In fact that was evidence given in the previous November hearing, where I have recorded in that order: the landlord advised that they were not intending to have sell the premises, and the sale is required for financial reasons.
There is no evidence or suggestion that the sale of the premise was simply a sham to move the tenants out. In fact I accept the premises did go on the market, and went as far as an offer being received. The sale was clearly genuine.
Conceptually there is no reason a landlord could not have the premises on the market, remove the listing, give the tenant notice, and then later relist the property. There is nothing in the RTA or general law that would stop the landlord doing that.
The only restriction would be around retaliatory notices, if the landlord had terminated the tenancy on the basis of the tenant exercising some right, power or authority in relation to the tenancy, but I cannot see they have.
At the hearing the tenant confirmed that they have been entirely agreeable to the landlord undertaking open homes, and with viewings. The tenant stated they have not refused any, although the landlord considered the tenants would be difficult with this. The tenants did not need to agree to open homes (but they could voluntarily agree to them), but what is critical is that the tenants did agree to those occurring (on the tenants evidence at least), so this is not a situation where the tenants were say exercising an authority they had as tenants to point blank refuse open homes occurring.
I can understand the advice from the Real Estate Agent, that when the premises had not sold, that it should be removed from the market for a period of time, and then to relist it when the market picked up, and after doing work to it. There seems nothing unusual in that advice, it would be understandable.
This is supported by an email provided from the landlords, from the Real Estate Agent, which states in part: The property needs to be vacant and tidied up before marketing it for sale again as its near impossible to sell it to anyone in the state it is.
I can also understand that a property may be easier to sell it if was vacant or staged for sale, which of course would require that the tenancy be terminated, again there would be nothing unusual in that. Of course the landlord is able to lawfully give notice to the tenant in order to achieve this.
The end result is that on the evidence available, I find the evidence does not support the termination notice to be a retaliatory termination notice under the RTA, so this application must be dismissed. I consider the landlords motivation in terminating the tenancy was to have the premises vacant to recommence marketing toward a sale in the New Year.

Tenancy Tribunal case 4738471 — Tenancy dispute at 25B Philson Terrace, Browns Bay, Auckland 0630

At a glance

Claims & awards

Tenancy Tribunal case 4738471 — Tenancy dispute at 25B Philson Terrace, Browns Bay, Auckland 0630

At a glance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

Topics & place

Residential Tenancies Act sections

Frequently asked questions