What was Tenancy Tribunal case 4774763 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4774763?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4774763?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774763?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9932843-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4774763 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4774763?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4774763?

The dispute type was not classified.

Where can I read the official tribunal order for case 4774763?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9932843-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1028, 21 Whitaker Place, Grafton, Auckland 1010, Tenancy Tribunal Case 4774763 — Tenancy dispute

Order

The application is dismissed.

Reasons

Both parties attended the hearing. Mr Woojoon Kim attended for the landlord.
The landlord has made an application to the Tribunal seeking termination of the tenancy following the expiry of a 90-day notice of termination given to the tenant under section 51 of the Residential Tenancies Act 1986, “the Act”. The tenant is still in possession of the premises.
For the Tribunal to terminate the tenancy and issue a possession order in favour of the landlord, the Tribunal must be satisfied that a lawful notice to terminate the tenancy has been served on the tenant, and the tenant has failed to comply with it.
It is for the landlord to prove to the civil standard, on the balance of probabilities, that this has happened.
The 90-day notice of termination was served on the tenant on 14 October 2023 and gave the reason for terminating the tenancy as “Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is being done. The work must begin or material steps towards it are to be taken within 90 days after termination date (as above).” This provision is an uplift in part from section 51 of the Act.
In response, the tenant stated that a similar application had been heard by the Tribunal last year and had been dismissed because the landlord did not have any plans to redevelop the property at all. The tenant is referring to application NZTT 4637030 which commented on the lack of evidence provided for repairs or refurbishment, but dismissed the application because the 90-day notices were defective.
The Act includes the following: 51Termination by notice .... (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— .... (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
In support of his application the landlord listed the damage that the tenant has done to the property and stated “the extensive alterations, refurbishment, repairs or redevelopment” were in response to this damage. The damage consisted of paint stains on the carpet, bed backboard, window, bathroom sink, kitchen sink and kitchen floor. He stated that there isn’t a problem with any part of the flat not working, it is just not in a “condition that someone can live there.” Photographs provided by the landlord show the premises to be extremely messy with obvious paint stains and markings in many places.
The tenant did not dispute the information in the photos of paint stains and markings throughout the apartment. He did however dispute that extensive alterations, refurbishment, repairs or redevelopment of the premises were needed or planned at the premises as a result.
The landlord stated that nothing at the apartment was broken, and the tenant agreed.
The paint stains and markings in the apartment are significant yet somewhat superficial. Other than the carpet, it may be the case that nothing else needs replacing. As already stated there is not a problem with anything not working. The paint stains do not have a deleterious effect on anyone who is happy to live in such an environment. Remedying them, including the carpet would not make it impracticable for the tenant to remain in occupation while the work was undertaken.
I do not believe the landlord is planning an extensive alteration, refurbishment, repair or redevelopment. I believe they object to the state in which the tenant lives and they want to thoroughly clean and tidy the flat. Perhaps they are disturbed at how their apartment is being treated and believe the tenant is breaching his obligations as a tenant. I am somewhat sympathetic to their view. However, no evidence of any extensive alterations, refurbishment, repairs or redevelopment, such as would make it impractical for the tenant to remain in occupation has been provided to the Tribunal today.
Because of this I find the 90-day notice dated 14 October 2023 is not a lawful notice of termination, and I decline to make an order for possession.
If the manner in which this tenant is treating the property is not acceptable to the landlord, there may be remedies available, but in my view terminating the tenancy under section 51 of the Act is not one of them.
The effective difference is that under the other remedies provided by the Act, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate. This allows the tenant an opportunity to remedy the problem themselves in the first instance.
The applicant sought name suppression in his application but was unsuccessful in his claim, and did not advance any reason to support it being granted. As a result, name suppression is not granted.

Reasons

Both parties attended the hearing. Mr Woojoon Kim attended for the landlord.

The landlord has made an application to the Tribunal seeking termination of the tenancy following the expiry of a 90-day notice of termination given to the tenant under section 51 of the Residential Tenancies Act 1986, “the Act”. The tenant is still in possession of the premises.

For the Tribunal to terminate the tenancy and issue a possession order in favour of the landlord, the Tribunal must be satisfied that a lawful notice to terminate the tenancy has been served on the tenant, and the tenant has failed to comply with it.

It is for the landlord to prove to the civil standard, on the balance of probabilities, that this has happened.

The 90-day notice of termination was served on the tenant on 14 October 2023 and gave the reason for terminating the tenancy as “Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is being done. The work must begin or material steps towards it are to be taken within 90 days after termination date (as above).” This provision is an uplift in part from section 51 of the Act.

In response, the tenant stated that a similar application had been heard by the Tribunal last year and had been dismissed because the landlord did not have any plans to redevelop the property at all. The tenant is referring to application NZTT 4637030 which commented on the lack of evidence provided for repairs or refurbishment, but dismissed the application because the 90-day notices were defective.

The Act includes the following: 51Termination by notice .... (2)A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— .... (f)extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;

In support of his application the landlord listed the damage that the tenant has done to the property and stated “the extensive alterations, refurbishment, repairs or redevelopment” were in response to this damage. The damage consisted of paint stains on the carpet, bed backboard, window, bathroom sink, kitchen sink and kitchen floor. He stated that there isn’t a problem with any part of the flat not working, it is just not in a “condition that someone can live there.” Photographs provided by the landlord show the premises to be extremely messy with obvious paint stains and markings in many places.

The tenant did not dispute the information in the photos of paint stains and markings throughout the apartment. He did however dispute that extensive alterations, refurbishment, repairs or redevelopment of the premises were needed or planned at the premises as a result.

The landlord stated that nothing at the apartment was broken, and the tenant agreed.

The paint stains and markings in the apartment are significant yet somewhat superficial. Other than the carpet, it may be the case that nothing else needs replacing. As already stated there is not a problem with anything not working. The paint stains do not have a deleterious effect on anyone who is happy to live in such an environment. Remedying them, including the carpet would not make it impracticable for the tenant to remain in occupation while the work was undertaken.

I do not believe the landlord is planning an extensive alteration, refurbishment, repair or redevelopment. I believe they object to the state in which the tenant lives and they want to thoroughly clean and tidy the flat. Perhaps they are disturbed at how their apartment is being treated and believe the tenant is breaching his obligations as a tenant. I am somewhat sympathetic to their view. However, no evidence of any extensive alterations, refurbishment, repairs or redevelopment, such as would make it impractical for the tenant to remain in occupation has been provided to the Tribunal today.

Because of this I find the 90-day notice dated 14 October 2023 is not a lawful notice of termination, and I decline to make an order for possession.

If the manner in which this tenant is treating the property is not acceptable to the landlord, there may be remedies available, but in my view terminating the tenancy under section 51 of the Act is not one of them.

The effective difference is that under the other remedies provided by the Act, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate. This allows the tenant an opportunity to remedy the problem themselves in the first instance.

The applicant sought name suppression in his application but was unsuccessful in his claim, and did not advance any reason to support it being granted. As a result, name suppression is not granted.

Tenancy Tribunal case 4774763 — Tenancy dispute at Unit/Flat 1028, 21 Whitaker Place, Grafton, Auckland 1010,

At a glance

Claims & awards

Tenancy Tribunal case 4774763 — Tenancy dispute at Unit/Flat 1028, 21 Whitaker Place, Grafton, Auckland 1010,

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions