What was the outcome of Tenancy Tribunal case 4752519?

The tribunal order states: The notice of rent increase dated 2 November 2023 (and subsequent variation

How much money was awarded in case 4752519?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4752519?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4752519?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10720636-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4752519?

The tribunal order states: The notice of rent increase dated 2 November 2023 (and subsequent variation

How much money was awarded in case 4752519?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4752519?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4752519?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10720636-Tribunal_Order.pdf.

32 Forbes Street, Onehunga, Auckland 1061 Tenancy Tribunal Case 4752519 — Rent arrears

Order

The notice of rent increase dated 2 November 2023 (and subsequent variation dated 17 January 2024) is invalid of no effect.

Reasons

The landlord had made an application on 28 November 2023 for an order terminating the tenancy, rent arrears, water rates and reimbursement of the filing fee.
At the hearing of the landlord’s application on 17 January 2024 the Tribunal also considered whether a notice of rent increase dated 2 November 2023 was valid in order to determine the amount rent arrears owing.
On the day of the hearing the Tribunal determined that there was an error in the notice, made an order consenting to a variation of the notice, and made a conditional termination order.
The tenants applied for a rehearing and on 19 January 2024 a rehearing was granted solely on the issue of the validity of the notice. Re-hearing on 20 August 2024
Mr Jones appeared for the landlord by telephone with the approval of the Tribunal. Mr Mcgrath appeared in person. He confirmed that he had authority to appear on behalf of Mrs Mcgrath.
This matter was set down before me as a rehearing. The hearing is therefore heard de novo. That is, it is heard afresh based on the evidence and arguments presented at the re-hearing. Notice of rent increase
The landlord served the tenants with a notice of rent increase under Section 24 of the Residential Tenancies Act 1986 (RTA”) on 2 November 2023 stating: “This email is 60 days formal notice that the rent on 32 Forbes St Onehunga will increase to $1100 per week, taking effect on 1 January 2024.”
Section 24(1) RTA states that the rent payable in respect of any tenancy may be increased by the landlord provided various conditions are complied with, including the condition that “the day upon which the increased rent shall become payable shall not be less than 60 days ... after the date on which that notice is given”. See Section 24(1)(c) RTA.
The notice was defective however. Section 136A RTA states that where notice is required to be given the period commences on the date after the notice is given. As the landlord gave notice on 2 November 2023 the notice period would run from 3 November 2023. The period from 3 November 2023 to 1 January 2024 is only 59 days.
Section 24(4) states that where a landlord has given notice to increase rent and subsequently realises that there has been an error in calculating the day on which the increased rent becomes payable, the landlord may give to the tenant further notice varying the original notice (either with the agreement of the tenant, or failing that, the consent of the Tribunal).

Section 24(6) states that the Tribunal shall not give its consent unless it is satisfied: a. that the error was inadvertent; and b. that the landlord has sought to correct the matter as soon as practicable; and 1 I note that the landlord’s original application did not include an application for an order from the Tribunal consenting to a variation notice. However I consider that the matter was raised orally at the hearing on 17 January 2024 and as this issue has been set down for hearing and both parties have had the opportunity to consider the issue and make submissions I am prepared to deal with it on that basis. c. that it would not be unfair to the tenant to allow the original notice to be varied in the manner proposed.
Notice dates are strictly enforced 2 . They can only be varied with the agreement of the tenant or the consent of the Tribunal. The wording of the 24(6) is mandatory, that is, the Tribunal shall not consent unless it is satisfied that all three conditions are satisfied.
Both parties agreed that the error was inadvertent and the first condition is satisfied.
The tenants say however that the landlord did not seek to correct the matter as soon as practicable and so the Tribunal cannot consent to the landlord varying the original notice.
Mr Mcgrath said that he advised the landlord of the error by email on 8 January 2024. A copy of the email was produced to the Tribunal.
The tenants said that the landlord took no steps to correct the matter but instead the landlord sought to rely on the notice of rent increase at the hearing on 17 January 2024, and that the landlord then sent them a variation notice on after 5pm that day stating that the rent increase would take effect that day.
Mr Jones said that Mr Mcgrath sent the email advising of the error on 8 January 2024 and that he did not see it until the following day, 9 January 2024. He said that as the parties were already scheduled to appear at a Tribunal hearing only 9 days later, on 17 January 2024, the landlord thought that it would be sensible to address the matter at the Tribunal hearing, and having done so, the landlord issued a variation notice following the hearing (a copy of the variation notice was also produced to the Tribunal).
The words “as soon as reasonably practicable” appear frequently in legislation and have been considered in numerous cases. The words are to be interpreted in accordance with their plain and natural meaning and in the context of the particular enactment in which the words appear and the particular case.
In my view “as soon as reasonably practicable” in this context means one or two days. I take this view because the notice periods in the RTA are very strict and all the landlord had to do was to send the tenant an email setting out the correct dates.
While I can appreciate that the landlord thought it would be sensible to simply wait for the scheduled hearing to deal with the issue, the landlord has not sought to correct the matter as soon as reasonably practicable.
For completeness I record that even if I had found that the variation notice had been served “as soon as reasonably practicable” I do not consider that the third 2 See Charan v Barfoot & Thompson Ltd, DC MANUKAU CIV-2010-092-002100 condition would be satisfied. This is a de novo hearing. If Tribunal were to give consent to the variation notice the tenants would be liable for increased rent from 17 January 2024 and would immediately be in substantial arrears.
As the three conditions of 24(6) are not satisfied the Tribunal does not consent to the variation. Next steps
If the landlord wishes to increase the rent they must serve a new notice that complies with Section 24(1).
Mr Mcgrath indicated at the hearing that if a new notice was issued the tenants were likely to apply to the Tribunal under Section 25 RTA on the basis that the increased amount substantially exceeds market rent.
I suggested to the parties at the hearing that they may wish to meet to discuss matters going forward to see if they can reach agreement and in doing so avoid a further application and Tribunal hearing.

Order

The notice of rent increase dated 2 November 2023 (and subsequent variation dated 17 January 2024) is invalid of no effect.

Reasons

The landlord had made an application on 28 November 2023 for an order terminating the tenancy, rent arrears, water rates and reimbursement of the filing fee.
At the hearing of the landlord’s application on 17 January 2024 the Tribunal also considered whether a notice of rent increase dated 2 November 2023 was valid in order to determine the amount rent arrears owing.
On the day of the hearing the Tribunal determined that there was an error in the notice, made an order consenting to a variation of the notice, and made a conditional termination order.
The tenants applied for a rehearing and on 19 January 2024 a rehearing was granted solely on the issue of the validity of the notice. Re-hearing on 20 August 2024
Mr Jones appeared for the landlord by telephone with the approval of the Tribunal. Mr Mcgrath appeared in person. He confirmed that he had authority to appear on behalf of Mrs Mcgrath.
This matter was set down before me as a rehearing. The hearing is therefore heard de novo. That is, it is heard afresh based on the evidence and arguments presented at the re-hearing. Notice of rent increase
The landlord served the tenants with a notice of rent increase under Section 24 of the Residential Tenancies Act 1986 (RTA”) on 2 November 2023 stating: “This email is 60 days formal notice that the rent on 32 Forbes St Onehunga will increase to $1100 per week, taking effect on 1 January 2024.”
Section 24(1) RTA states that the rent payable in respect of any tenancy may be increased by the landlord provided various conditions are complied with, including the condition that “the day upon which the increased rent shall become payable shall not be less than 60 days ... after the date on which that notice is given”. See Section 24(1)(c) RTA.
The notice was defective however. Section 136A RTA states that where notice is required to be given the period commences on the date after the notice is given. As the landlord gave notice on 2 November 2023 the notice period would run from 3 November 2023. The period from 3 November 2023 to 1 January 2024 is only 59 days.
Section 24(4) states that where a landlord has given notice to increase rent and subsequently realises that there has been an error in calculating the day on which the increased rent becomes payable, the landlord may give to the tenant further notice varying the original notice (either with the agreement of the tenant, or failing that, the consent of the Tribunal).

Section 24(6) states that the Tribunal shall not give its consent unless it is satisfied: a. that the error was inadvertent; and b. that the landlord has sought to correct the matter as soon as practicable; and 1 I note that the landlord’s original application did not include an application for an order from the Tribunal consenting to a variation notice. However I consider that the matter was raised orally at the hearing on 17 January 2024 and as this issue has been set down for hearing and both parties have had the opportunity to consider the issue and make submissions I am prepared to deal with it on that basis. c. that it would not be unfair to the tenant to allow the original notice to be varied in the manner proposed.
Notice dates are strictly enforced 2 . They can only be varied with the agreement of the tenant or the consent of the Tribunal. The wording of the 24(6) is mandatory, that is, the Tribunal shall not consent unless it is satisfied that all three conditions are satisfied.
Both parties agreed that the error was inadvertent and the first condition is satisfied.
The tenants say however that the landlord did not seek to correct the matter as soon as practicable and so the Tribunal cannot consent to the landlord varying the original notice.
Mr Mcgrath said that he advised the landlord of the error by email on 8 January 2024. A copy of the email was produced to the Tribunal.
The tenants said that the landlord took no steps to correct the matter but instead the landlord sought to rely on the notice of rent increase at the hearing on 17 January 2024, and that the landlord then sent them a variation notice on after 5pm that day stating that the rent increase would take effect that day.
Mr Jones said that Mr Mcgrath sent the email advising of the error on 8 January 2024 and that he did not see it until the following day, 9 January 2024. He said that as the parties were already scheduled to appear at a Tribunal hearing only 9 days later, on 17 January 2024, the landlord thought that it would be sensible to address the matter at the Tribunal hearing, and having done so, the landlord issued a variation notice following the hearing (a copy of the variation notice was also produced to the Tribunal).
The words “as soon as reasonably practicable” appear frequently in legislation and have been considered in numerous cases. The words are to be interpreted in accordance with their plain and natural meaning and in the context of the particular enactment in which the words appear and the particular case.
In my view “as soon as reasonably practicable” in this context means one or two days. I take this view because the notice periods in the RTA are very strict and all the landlord had to do was to send the tenant an email setting out the correct dates.
While I can appreciate that the landlord thought it would be sensible to simply wait for the scheduled hearing to deal with the issue, the landlord has not sought to correct the matter as soon as reasonably practicable.
For completeness I record that even if I had found that the variation notice had been served “as soon as reasonably practicable” I do not consider that the third 2 See Charan v Barfoot & Thompson Ltd, DC MANUKAU CIV-2010-092-002100 condition would be satisfied. This is a de novo hearing. If Tribunal were to give consent to the variation notice the tenants would be liable for increased rent from 17 January 2024 and would immediately be in substantial arrears.
As the three conditions of 24(6) are not satisfied the Tribunal does not consent to the variation. Next steps
If the landlord wishes to increase the rent they must serve a new notice that complies with Section 24(1).
Mr Mcgrath indicated at the hearing that if a new notice was issued the tenants were likely to apply to the Tribunal under Section 25 RTA on the basis that the increased amount substantially exceeds market rent.
I suggested to the parties at the hearing that they may wish to meet to discuss matters going forward to see if they can reach agreement and in doing so avoid a further application and Tribunal hearing.

Tenancy Tribunal case 4752519 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Tenancy Tribunal case 4752519 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

At a glance

Claims & awards

Order

Reasons

Should the Tribunal consent to the landlord varying the original notice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the Tribunal consent to the landlord varying the original notice?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions