What was Tenancy Tribunal case 4796117 about?

The tribunal order states: The Tribunal orders continued name suppression of the landlord’s name(s)

How much money was awarded in case 4796117?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4796117?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4796117?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10701492-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4796117 about?

The tribunal order states: The Tribunal orders continued name suppression of the landlord’s name(s)

How much money was awarded in case 4796117?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4796117?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4796117?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10701492-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4796117 — Rent arrears

Order

The Tribunal orders continued name suppression of the landlord’s name(s) and identifying details.
The tenant’s applications are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. While the dispute between the parties is now lengthy, this is the only application the tenant has filed for the Tribunal to consider.
The circumstances in relation to the tenancy have been fraught and difficult for both the landlords, the tenant and her whānau. Both parties have very strong views around their respective positions, and that they are right. There is nothing wrong with that, but ultimately the outcomes from the various Tribunal orders turn on our assessment of the law. Both parties were very respectful to the Tribunal at the hearing today, and I thank them for that.

BACKGROUND

I will summarise the background, focusing on the four issues to be adjudicated.
The tenancy commenced, according to the tenancy agreement, on 20 November 2020.
The landlord issued notices to increase the rent, that occurred in February 2022 and February 2023. As I will discuss below, the tenant strongly disputes the lawfulness of those rent increases. The tenant considers that the increases were not valid. The tenant did not increase her rent payments, and as a result rent arrears developed (again the tenant disputes she was in arrears as claimed by the landlord).
The landlord applied to terminate the tenancy because of rent arrears.
The matter came before Adjudicator Kemp who issued a decision on 12 July 2023 accepting there were rent arrears, and terminating the tenancy on that basis. The tenant strongly disagrees with that order again considering it not to be invalid. The order carried a right of appeal to the District Court, but no appeal was filed.
When the tenant did not vacate the premises as ordered by Adjudicator Kemp, the landlord applied for an eviction, and a Bailiff evicted the tenant on 26 July 2023. Police were involved with that eviction, and their engagement included detaining Ms Ropiha for a period of time to allow the eviction process to proceed.
The landlord needed to deal with the tenant’s goods left on the premises. Those were put into storage and efforts were made to get the tenant to uplift those goods, or for the landlord to deliver them to her, but the tenant declined that. 1 The tenant’s steadfast position is that she continued to be the rightful tenant, so the goods needed to be returned to the tenancy address.
The landlord filed a further application with the Tribunal, which came to a hearing with a further order dated 7 December 2023. Adjudicator Kemp made the following orders: a. Ordered name suppression for the landlord. b. Ordered the tenant to pay a range of compensation to the landlord, but when set off against a rent credit and the proceeds of the sale of tenant goods, resulted in the landlord needing to pay the tenant $3,449.04. 1 More recently five boxes of goods were uplifted by the tenant. c. Made further orders in relation to the collection/disposal of tenant goods.
The tenant filed this current application with the Tribunal, and I was appointed as the adjudicator to consider the tenant’s claims. On 7 March 2024 I directed that a telephone hearing be convened to establish what claims the Tribunal had jurisdiction to consider.
That telephone hearing was convened 4 June 2024. In the order issued that day I confirmed jurisdiction to consider four claims only, that is: a. A claimed breach of sections 28, 28A and 28(b)(3) concerning a rent increase. b. Whether the landlord has managed and disposed of tenant goods lawfully. c. A claim of unlawful entry. d. An order granting possession of the tenancy back to the tenant.
All other claims were dismissed. I note for completeness that that decision carried a right of appeal to the District Court, but again no appeal was filed in relation to it.
I convened a hearing in New Plymouth today to consider those four claims as confirmed on 4 June 2024. In attendance was Ms Ropiha with her mother in support, and also the landlord and property manager.

TENANTS CLAIMS

Again there are four claims to be adjudicated, and I will consider those in turn. A claimed breach of sections 28, 28A and 28(b)(3) concerning a rent increase
The tenant states that the rent increases were in breach of s28(b)(3). In particular, the tenant says that there were no renovations at the premises which would be a prerequisite to increase the rent, and further there needed to be the tenant’s consent to the increase.
In response the landlord states that the rent increases were made under section 24, and the landlord referred to the rent increase notices.
In conclusion, the tenant said that the effect of section 28B(3) was to confirm that sections 28 and 28A override sections 24 and 26 Analysis
The question is whether the rent increases were lawful.
The rent at the start of the tenancy was $450.00 per week. The landlord then gave two notices for rent increases as follows: a. 14 February 2022 notice, increasing rent to $470.00 to apply from 20 April 2022. b. 9 February 2023, notice increasing rent to $495.00 to apply from 26 April 2023.
Section 24 is the general rent increase provision in the Residential Tenancies Act 1986 (RTA). Section 24 sets out a range of restrictions for increasing rent, but importantly those restrictions include: a. The rent increase notice is to be in writing. b. 60 days’ notice of the increase must be given. c. Rent increases can only occur once every 12 months.
From what I can see, the landlord’s rent increase notices set out above in paragraph 20 would meet those requirements and would therefore be valid.
However, it is the tenant’s position that section 28 would apply, and given the effect of section 28B(3), that would trump any increase in section 24.
Section 28 is a provision that allows rent to increase by agreement, or when the landlord undertakes substantial improvements to the property with the consent of the tenant. The tenant considers that this section would need to apply in her case, again because of section 28B(3), which is in full: 28B Effect of rent increases under section 28 or 28A (1) An increase of rent agreed or ordered under section 28 or 28A does not affect the dates on which the rent may otherwise be reviewed or increased. (2) An increase of rent agreed or ordered under section 28 or 28A during the currency of any order made by the Tribunal under section 25— (a) does not affect the expiry date of that order; and (b) is to be treated as an amendment of that order. (3) Sections 28 and 28A override sections 24 and 26.
In this case, the tenant has not referred to any agreement whereupon the rent for the tenancy would increase following substantial improvements in the tenancy premises. In order for section 28 to apply as the tenant is proposing it applies, then there would firstly need to be substantial improvements with our without the tenant’s consent.
But it cannot be the case that the effect of section 28B(3) would mean that in all cases section 28 and 28A would apply. Or to put that another way, it cannot have been Parliament’s intention that section 28 and 28A would always apply, because if that was the case, then sections 24 and 26 (relating to market rent orders) could never apply.
I am entirely satisfied that a correct interpretation of section 28B, is that section 28 and 28A would prevail if there was a substantial improvement to the premises, and that has not been proven by the tenant.
What remains is that the law is clear, that a landlord can increase the rent every 12 months (or more) as the landlord has done here.
The end result is that the landlord’s rent increase was lawful, so this claim must be dismissed. Whether the landlord has managed and disposed of tenant goods lawfully
The tenant states that the landlord taking possession of the tenancy was “an act of war” under terrorism legislation. The tenant considers that this disposal was a consequence of an unlawful order of Adjudicator Kemp, and that her findings were based on invalid and fraudulent evidence provided by the landlord. The tenant considers the eviction resulted in a ‘home invasion’, including the ‘kidnapping’ of the tenant in the eviction process.
The tenant considers that the workers for the landlord who were engaged to remove her belongings, ‘burgled’ her dwelling.
The landlord’s position is that the tenancy was lawfully terminated and an eviction was enforced via the bailiff with the assistance of the Police, again all lawfully. The tenant’s goods were removed and placed in a storage locker. The tenant was given multiple opportunities to get her belongings but refused to collect them, rather requiring them to be returned to the tenancy address. Offers were made to drop off the goods for the tenant, but the tenant refused that offer too. When the goods were not uplifted by the tenant after 35 days, the goods of a saleable nature were sold. The landlord considers they had made reasonable efforts to return the goods to the tenant.
In conclusion the tenant said there was a trespass order in place which the landlord and police breached. Further, the tenant did not accept that Ms Kemp’s order of 12 July was correct and she returned it as ‘null and void’.
The tenant considers that all of her goods should have been returned to the tenancy address.
The tenant considers that she has experienced discrimination against her in relation to her engagement with the agencies around her disputes with the landlord and the eviction. Analysis
The tenant’s argument is that her goods were improperly seized and managed, and that some of the goods were improperly disposed of.
While I accept that Ms Ropiha has very strong views here, the law is not on her side in this matter.
What has occurred, is that the landlord applied to terminate the tenancy because of rent arrears. The Tribunal (Adjudicator Kemp) was satisfied that the claim had been established, and it was the Tribunal that ordered the termination of the tenancy, and required that possession be returned back to the landlord.
It law is clear, decisions of the Tenancy Tribunal once issued are binding on all parties, they are also binding on the Tribunal. The only way the order can be disturbed is by a successful appeal in the District Court, or by way of a successful rehearing application. In this case however, there was no appeal filed (that I am aware of), and there was no successful rehearing request. That means that the tenancy terminated just as Ms Kemp ordered it, and it also meant that the tenant needed to hand over possession of the premises to the landlord.
I note for completeness, that even if at a later time Ms Kemp or any other adjudicator considered the termination order was wrong, we could not cancel or vary that original termination order. Once sealed the order is final other than when it is overturned in the limited grounds discussed above.
But Ms Ropiha did not return possession of the premises as the law required it. The landlord applied for an eviction, and from what I have seen on the file, the process the landlord followed was correct. Ultimately the Bailiff took possession of the tenancy in the eviction process as the Bailiff was required to do when faced with a sealed termination and possession order of the Tribunal.
Section 40 of the RTA sets out the Tenant’s responsibilities, and that includes the following at (1)(e): on the termination of the tenancy, [the Tenant must]— (i) quit the premises; and (ii) remove all his or her goods from the premises; and (iii) leave the premises in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish; and (iv) return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant; and (v) leave in or at the premises all other chattels provided by the landlord for the use of the tenant.
What his means, is that Ms Rophia needed to have left the premises by 11:59 pm on 12 July 2023, and taken all her goods with her, but she failed to do that.
Once possession was returned to the landlord following the eviction, the landlord of course needed to deal with the tenant’s goods left on the premises – which should have been removed by the tenant prior. There are provisions in the RTA which set out how the goods must be dealt with. But in short the goods can be returned to the tenant, or sold or disposed of.
In this case there is ample evidence of the landlord working very hard to try and get the tenant to uplift her goods from storage, and even offering to deliver them to the tenant. I cannot see anything more the landlord reasonably should have done. When the tenant failed to uplift her goods the landlord assessed what goods could be sold, and they were sold. The other goods disposed of. Some smaller items (five boxes) were returned following the last hearing with Ms Kemp.
But because the tenancy termination has not been overturned by the District Court, the tenant is not entitled to return to the tenancy premises, and it must follow that the landlord was not obligated to return tenant goods there either. Unlawful entry
The tenant says that the entry of the landlord into her premises was unlawful for the reasons set out earlier in the hearing and summarised above, including the breach of the tenancy agreement, trespass notices, and breach of the RTA.
The landlord submitted that the trespass notice was not properly served on the landlord. The landlord states that the entry occurred during the eviction process on 26 July 2023.
The tenant states that the trespass notice was validly served. Analysis
This claim must fail for legal reasons.
Once the tenancy terminated at 11:59 pm on 12 July 2023, the tenant was no longer able to enforce any trespass notice concerning the premises, because she was not lawfully in possession of it.
The eviction occurred lawfully, and in the process, the bailiff was entitled to go onto the tenancy to take possession of it back from the tenant. When possession was then passed to the landlord, of course the landlord can enter the premises because it is back in their lawful possession. Possession order
The tenant says that possession of the tenancy was always hers, and a crime was committed against her. The premises are her home and she is entitled to it and continues to have that right of occupation. The communications from Tenancy Services referred to her as the ‘tenant’.
The landlord’s position is that the tenant was evicted from the tenancy. Analysis
As I have explained above, the tenancy was terminated by way of a Tribunal order. The tenant lost all rights of occupation at 11:59 pm on 12 July 2023.
There is no legal basis upon which the Tribunal could order that possession be given back to the tenant.
I conclude by noting that just because Ms Rophia has been referred to as the ‘tenant’ (in fact I have done that in this order also), does not mean she is a current tenant, that is the term commonly used in this jurisdiction to refer to someone who is either a current tenant, or was at some point a tenant. I note here that the RTA defines various terms in section 2, and that includes a definition of ‘tenant’ as including “a former tenant” which Ms Rophia is at this time.

NAME SUPPRESSION

Name suppression has been ordered for the landlord previously, and that is to continue.
There is no application for tenant name suppression otherwise.

Tenancy Tribunal case 4796117 — Rent arrears

At a glance

Tenancy Tribunal case 4796117 — Rent arrears

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions