What was Tenancy Tribunal case 4765877 about?

The tribunal order states: Realtunity Realestate Limited and Ray Cheng must pay [The tenant/s]

How much money was awarded in case 4765877?

Compensation: diference in rent if l…: $280.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4765877?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4765877?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10352111-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4765877 about?

The tribunal order states: Realtunity Realestate Limited and Ray Cheng must pay [The tenant/s]

How much money was awarded in case 4765877?

Compensation: diference in rent if l…: $280.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4765877?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4765877?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10352111-Tribunal_Order_Redacted.pdf.

18 Renoir Drive, Rolleston, Rolleston 7614 Tenancy Tribunal Case 4765877 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4765877 — net $1,300.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: diference in rent if lawful notice had been given on 4 July 2023	$280.00	diference in rent if lawful notice had been given on 4 July 2023
Exemplary damages: unlawful notice	$1,000.00	unlawful notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,300.44
Total payable by Landlord to Tenant	$1,300.44

Claims and awards in Tenancy Tribunal application 4765877 — net $1,300.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: diference in rent if lawful notice had been given on 4 July 2023	$280.00	diference in rent if lawful notice had been given on 4 July 2023
Exemplary damages: unlawful notice	$1,000.00	unlawful notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,300.44
Total payable by Landlord to Tenant	$1,300.44

Order

Realtunity Realestate Limited and Ray Cheng must pay [The tenant/s] $1,300.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. Mr Cheng, the property owner, attended by telephone. Mr Gong attended on behalf of Realtunity Realestate Limited.
The tenants claim that the landlord has breached their 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 these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00 under section 60AA and Schedule 1A of the Residential Tenancies Act 1986 (the Act).
The landlord purported to issue a termination notice on 29 June 2023. The notice appeared to be given on the basis that the fixed term was coming to an end on 4 September 2023. The notice said that the owner “will not be renewing your tenancy as they wish to obtain vacant possession.”
At the time, the tenants had no reason to believe that the landlord’s notice was ineffective, and they began to make arrangements to find alternative accommodation despite having no desire to move.
The notice is invalid on two grounds: a. No valid reason for termination is given as required under section 51(3) of the Act. b. If the landlord had intended to give notice due to an intention to list the property for sale, the appropriate notice period is 90 days and only 67 days’ notice was given.
Further, the non-compliance is such as to mislead and affect unjustly the interests of the tenant so cannot be validated by s 51(4) of the Act.
The landlord accepted at the hearing that the notice was contrary to the requirements of the Act. They provided no explanation for that.
The manager acknowledged that the tenancy would have automatically become periodic at the end of the fixed term under section 60A of the Act. It did not need to be renewed by the landlord and could not be arbitrarily ended by the landlord at the end of the fixed term.
They confirmed that the owner was not 100% sure he was going to sell when the notice was given and acknowledged that the time frame was insufficient even if this reason had been provided.
I find they have committed an unlawful act under section 60AA of the Act.
The tenants consider that, not only was the notice invalid, but the owner never intended to sell the property so they should have been entitled to stay in the tenancy until they wanted to leave or were given some other legitimate termination notice.
It was clear from the evidence provided by the tenants and their witness, that they had understandable reasons for believing that the proposed sale was not authentic.
They vacated the property on 4 September 2023. The property was never advertised for sale. Both the tenants and a neighbour, who gave evidence under a promise, saw people at the property consistently from the end of their tenancy. The tenants believed they saw people living in the property prior to 20 September 2023. They believe that new tenants moved in almost immediately after their tenancy ended. Although the property was never advertised for sale, it was relisted for rent on 27 September 2023.
Both the landlord and tenants provided documentation which enables a timeline to be constructed. a. Purported notice was given on 29 June 2023. b. On 4 July 2023 the tenants texted the property manager to ask if they could be released early. The property manager replied that it was unlikely the owner would agree as he wanted to sell the property in September when the weather is better for selling. c. On 11 July, the manager confirmed her earlier advice that the owner did not want them to leave early as he intended to sell in September. d. The owner obtained a desk top sale valuation range on 8 August 2023 from the agent who ended up listing the property. e. The property was vacated as outlined above on 4 September 2023. f. The owner entered into a listing agreement with an unrelated real estate company for the sale of the property. The sole agency agreement was signed on 4 September and was to run from 6 September to 31 October 2023. g. The desk top valuation range was provided for the purpose of estimating commission but the “search range” level went up to a figure of $80,000 above this range. h. An email was sent to the listing agent on 19 September 2023 withdrawing the property as “the market is unfavourable at this stage”. i. The property was relisted for rent by 27 September 2023 and a new tenancy began on 7 October 2023.
The owner and property manager explained this timeline by confirming that the owner wanted to sell the property due to personal financial pressures. He received the desk top valuation in early August and was clearly hoping to achieve a price at the higher end of that range or even beyond it.
The listing agent gave him feedback after a physical inspection of the property once the tenancy had ended. She told him that due to the tired nature of some of the fixtures and fittings, she considered that a price at the lower end of the estimate would be achievable in the current market. The owner required time to consider his options and then decided to withdraw the property from the market.
As the property had now been empty for some weeks, the owner wanted to have it relet as soon as possible and instructed the management company accordingly. The property manager obtained the keys back from the listing agent at the property on 20 September 2023.
The manager gave evidence that he advised that the property should be advertised at the lower end of the then market rent to achieve a fast tenancy and that a flat share situation was the most likely scenario if the property were to be rented quickly.
The property was advertised, and new tenants found as outlined above.
The owner gave evidence to the tribunal that he had lost money during these events and, even though the rent had been increased, it was not enough to make back what he had lost over the course of the new tenancy agreement’s fixed term.
The witness gave evidence that various tradespeople attended the property after the tenants had moved out.
He then saw what he described as an “open home” ten days to two weeks following 4 September 2023 (“the second Sunday after the house was empty”, being 16 September 2023). He could not be sure whether it was an open home for the purposes of renting the property or selling it. There was no signage in place in relation to the “open home”.
To my mind, given that the property was not being advertised for rent at this time but was the subject of a sole agency agreement, it is most likely that any “open home” viewers were either looking at the property to buy for themselves or were agents viewing the property for their own potential buyers. The only person who had access to the property at this time was the sales listing agent. The property manager had handed the keys to her when the tenant had returned them (around 5 September).
The witness confirmed that within a week of this open home there were people at the property, coming and going (“doing stuff”) and eventually moving in. He thought the vehicles at the property following the open home were the same vehicles as were there now and belonged to the new tenants.
The landlord said the property was empty, apart from agents and tradespeople from the end of the tenancy to the new tenancy which began on 7 October.
Although the tenants’ view is understandable in the face of the information before them at the time, I consider the evidence provided by the landlord to be a reasonable explanation for the events. I found the evidence of all parties credible but note that all of the documentary evidence provided and, to a large extent, the witness’s evidence, support the explanation provided by the landlord.
I find that the landlord genuinely intended to sell the property, and entered a binding agreement for that purpose, before withdrawing the property from sale as the likely achievable price was well below his expectations.
I further find that although the landlord eventually had a legitimate reason for terminating the tenancy, the notice given was inadequate. At the time the notice was given, the owner had not absolutely decided to sell the property and notice should not have been given until he had. When that legitimate notice was given, the notice period needed to be 90 days.
I consider that the earliest the landlord could claim to have given a legitimate reason for termination was 4 July when they informed the tenant that the owner intended to market the property for sale.
If legitimate notice had been given on 4 July it would have expired on 2 October, 28 days after the actual end of the tenancy.
The tenant has claimed compensation for all of their moving costs, but I consider that, given the landlord did intend to sell and was entitled to give notice on that basis, the actual loss suffered was only that which flowed from the incorrect notice period. I calculate that loss as the difference between the old rent ($580.00) and the new rent being paid by the tenant ($650.00) for the four weeks between the end of the tenancy and the first date it could legitimately have ended (2 October 2023).
This amount is $280.00 and is proved.
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 under section 109(3) of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
The owner asked the company to end the tenancy at the end of the fixed term. The owner may not have been aware that he could not do this without valid reason, but the management company was aware of that, and they issued the notice anyway.
I consider that the landlord, a professional property management company, is aware of the law relating to residential tenancies. No suggestion was made that the landlord was not aware that the notice was invalid. No explanation was offered as to why the notice was issued in such a manner.
The notice led the tenant to believe that they had no option but to leave the tenancy at the end of the fixed term. They had wanted to remain at the property until their new house was built, estimated at some nine months after the end of the fixed term period.
The shortened notice period undoubtedly made the stress and anxiety of moving greater than it needed to be.
It is in the public interest that landlords are dissuaded from terminating tenancies without proper grounds or misleading tenants into believing that their tenancy can be ended by the landlord at the end of a fixed term when that is contrary to the Act.
I consider exemplary damages in the sum of $1,000.00 to be appropriate in this matter and the amount ordered is proved. Filing fee and name suppression
The applicant requested name suppression in their application. As they have substantially succeeded with their claim, I have ordered suppression of their names and identifying details.
As [The applicant/s] have partly succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4765877 — Exemplary damages at 18 Renoir Drive, Rolleston, Rolleston 7614

At a glance

Tenancy Tribunal case 4765877 — Exemplary damages at 18 Renoir Drive, Rolleston, Rolleston 7614

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