What was Tenancy Tribunal case 4807957 about?

The tribunal order states: Maryanne Gill must pay [The tenant/s] $2,020.44 immediately, calculated as

How much money was awarded in case 4807957?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807957?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4807957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10421302-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4807957 about?

The tribunal order states: Maryanne Gill must pay [The tenant/s] $2,020.44 immediately, calculated as

How much money was awarded in case 4807957?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807957?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4807957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10421302-Tribunal_Order_Redacted.pdf.

373 South Makara Road, Makara, RD 2, Wellington 6972 Tenancy Tribunal Case 4807957 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4807957 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

Maryanne Gill must pay [The tenant/s] $2,020.44 immediately, calculated as shown in table below.
The rest of the claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord and her husband own a farm which has a villa and a stand alone one bedroom portacom next to each other on part of the farm. The tenant moved into the portacom – called the cottage - in August 2021. There may have been a written tenancy agreement but I have not seen a copy of this. The tenant’s sister was living in the villa at the time. On 19 November 2023 the landlord served a notice terminating both tenancies because the villa and the cottage were being put on the market for sale. The tenant gave her own notice and moved out on 2 February 2024.
The cottage was listed for rent on Trade me on 8 February – 6 days later. The tenant has applied for exemplary damages because the landlord gave a notice to terminate the tenancy which she was not entitled to give and for compensation for the cost of moving. The landlord has applied for compensation for the cost of cleaning, gardening and recarpeting following the end of the tenancy. The question I have to decide are: • Did the landlord intend to sell the cottage? • Should the tenant get compensation? • Did the tenant comply with her obligations at the end of the tenancy?

Did the landlord intend to sell the cottage?

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under section 51(1) or (2) Residential Tenancies Act 1986 (RTA).
Section 51(2)(a) provides that a landlord can terminate a periodic tenancy by giving at least 90 days notice if 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.
In this case the cottage was listed on Trade me instead and rented out within weeks of the tenant moving. This means the landlord has the onus of proving there was actually an intention to sell. The relevant time for determining the landlord’s intention is when the notice was given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
The landlord submitted that the tenant and her sister were looking to buy the cottage and the villa after a subdivision. The parties never had an agreement in writing. The landlord said she gave the 90 day notice in the hope this would prompt the tenant and her sister into making an offer, and her email sent with the notice refers to the subdivision process and then states: “...So please find attached a 90 day notice that we intend to sell the property as has been discussed over the last year and a half. Obviously if you finalize an offer to purchase with us within the next three months, then any subsequent written agreement may override the 90 day letter. But issuing this letter now is the correct procedure for us to meet our legal obligations to you all as landlord. It has always been our intention to help you transition from being our favorite tenants to our new neighbours and assist you into your first home. We hope we can help you achieve this...”
The landlord said she was advised by her lawyer to give the 90 day notice in this way, but I have not been provided with copies of any correspondence with the lawyer prior to November 2023. There is a written statement provided by the landlord’s daughters which plainly states the landlord hoped the 90 day notice would reignite discussions or lead to the tenants putting an offer on the table. There is no other evidence that supports the landlord’s intention to sell. The only evidence a real estate agent was involved is one appraisal done in May 2023, months before the notice was given.
The written statement signed by the landlord’s daughter states that they now intend to purchase the villa and the cottage from their parents. This decision was made in December, after the tenant gave her 28 day notice. This purchase will allow the daughters to “add to their rental property portfolio”. I have not been provided with any evidence – such as correspondence with the lawyer – confirming a sale to the daughters. I note that the intended sale to the daughters came weeks after the 90 day notice was given. I also note that the property hasn’t been sold within the 90 day period specified in section 51(2) RTA.
I am not persuaded that the landlord intended to put the cottage on the market for sale or other disposition when the notice was given. It seems most likely to me that the landlord used the 90 day notice to manipulate the tenant and this is not how the notice provisions of the RTA should be used. When an offer to buy was not forthcoming the landlord – not her daughters - advertised, showed the cottage, and signed a tenancy agreement with a new tenant for an increased rent.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. I find the landlord committed an unlawful act. 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. Exemplary damages may be awarded, up to a maximum of $6,500.00. See sections 60AA and 109(3) and Schedule 1A RTA.
I find the landlord acted intentionally when she gave the notice. The effect for the tenant was that she had the additional cost and hassle of moving herself and her pets. The tenant was frustrated that her move was unnecessary and said it was hard to quantify the effect on her wellbeing. It is in tenants’ interests that they can settle into a rental home without fear of being given a 90 day notice because a landlord “feels badly let down”. There is public interest in landlords paying exemplary damages when there is a breach of the RTA. I allow $2000, which is at the lower end of the scale because I am not aware of any similar orders against the landlord.
I note for completeness that the landlord requested an urgent hearing when she filed her application because she wanted a determination by the Tribunal as to the lawfulness of the notice and time left to put the cottage on the market for sale if the order favoured the tenant. As set out above, the time for assessing intention is when the notice was given, so an earlier hearing would not have changed the outcome for the landlord.

Should the tenant get compensation?

The tenant has claimed $584 as her share of moving costs at the end of the tenancy. The landlord did not agree to pay this amount. Tenants do not have security of tenure, and moving costs are an inevitable part of renting. While the tenant is most likely correct that her move was unnecessary, I have allowed exemplary damages for that breach. I am not persuaded I should also allow moving costs and this claim is dismissed.

Did the tenant comply with her obligations at the end of the tenancy?

The landlord has claimed a large amount of compensation for cleaning the carpets and tidying the area of land around the cottage at the end of the tenancy. She has also claimed the cost of replacing the carpets. Tenants must return the tenancy premises in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy. See sections 40(1)(c) and (e)(iii) RTA.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The RTA does not require the premises – which includes the gardens - to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
As to the land around the cottage, I have been provided with photos taken by the landlord. There are quite large hedges which I consider to be a landlord maintenance responsibility. There is no proper lawn, just an area of old paddock, and I find it was left reasonably tidy. Cutting back growth impinging on the villa next door is also a maintenance job for the landlord. I am not persuaded the landlord has proved the gardens were left in an unreasonable condition.
There is a claim for removing rubbish, but the photos do not show any rubbish lying around. The landlord said the contractor picked up half a truck load of pumice and stones and the like, but I do not have photos of that. The landlord has not proved the need for rubbish removal.
The landlord has claimed hours for cleaning and deodorising the carpets in the cottage. She said the smell of dog was so bad that the new tenant insisted she replace the carpets. The landlord has no other evidence to prove the smell was from the dogs, such as a statement from an independent carpet cleaner who has specialist products for deducing smells. In reply the tenant said the cottage leaked during the tenancy and it did smell after it was shut up. I am not persuaded the landlord has proved the smell was from the dogs.
This means the landlord has not proved the tenant should pay for replacement carpet either.
The landlord’s cross application is dismissed. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because she is the most successful party. The landlord’s application for suppression is not allowed because there is public interest in names when the RTA has been breached and exemplary damages ordered.

Claims and awards in Tenancy Tribunal application 4807957 — net $2,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,020.44
Total payable by Landlord to Tenant	$2,020.44

Order

Maryanne Gill must pay [The tenant/s] $2,020.44 immediately, calculated as shown in table below.
The rest of the claims are dismissed.

Reasons

Both parties attended the hearing.
The landlord and her husband own a farm which has a villa and a stand alone one bedroom portacom next to each other on part of the farm. The tenant moved into the portacom – called the cottage - in August 2021. There may have been a written tenancy agreement but I have not seen a copy of this. The tenant’s sister was living in the villa at the time. On 19 November 2023 the landlord served a notice terminating both tenancies because the villa and the cottage were being put on the market for sale. The tenant gave her own notice and moved out on 2 February 2024.
The cottage was listed for rent on Trade me on 8 February – 6 days later. The tenant has applied for exemplary damages because the landlord gave a notice to terminate the tenancy which she was not entitled to give and for compensation for the cost of moving. The landlord has applied for compensation for the cost of cleaning, gardening and recarpeting following the end of the tenancy. The question I have to decide are: • Did the landlord intend to sell the cottage? • Should the tenant get compensation? • Did the tenant comply with her obligations at the end of the tenancy?

Did the landlord intend to sell the cottage?

From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under section 51(1) or (2) Residential Tenancies Act 1986 (RTA).
Section 51(2)(a) provides that a landlord can terminate a periodic tenancy by giving at least 90 days notice if 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.
In this case the cottage was listed on Trade me instead and rented out within weeks of the tenant moving. This means the landlord has the onus of proving there was actually an intention to sell. The relevant time for determining the landlord’s intention is when the notice was given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
The landlord submitted that the tenant and her sister were looking to buy the cottage and the villa after a subdivision. The parties never had an agreement in writing. The landlord said she gave the 90 day notice in the hope this would prompt the tenant and her sister into making an offer, and her email sent with the notice refers to the subdivision process and then states: “...So please find attached a 90 day notice that we intend to sell the property as has been discussed over the last year and a half. Obviously if you finalize an offer to purchase with us within the next three months, then any subsequent written agreement may override the 90 day letter. But issuing this letter now is the correct procedure for us to meet our legal obligations to you all as landlord. It has always been our intention to help you transition from being our favorite tenants to our new neighbours and assist you into your first home. We hope we can help you achieve this...”
The landlord said she was advised by her lawyer to give the 90 day notice in this way, but I have not been provided with copies of any correspondence with the lawyer prior to November 2023. There is a written statement provided by the landlord’s daughters which plainly states the landlord hoped the 90 day notice would reignite discussions or lead to the tenants putting an offer on the table. There is no other evidence that supports the landlord’s intention to sell. The only evidence a real estate agent was involved is one appraisal done in May 2023, months before the notice was given.
The written statement signed by the landlord’s daughter states that they now intend to purchase the villa and the cottage from their parents. This decision was made in December, after the tenant gave her 28 day notice. This purchase will allow the daughters to “add to their rental property portfolio”. I have not been provided with any evidence – such as correspondence with the lawyer – confirming a sale to the daughters. I note that the intended sale to the daughters came weeks after the 90 day notice was given. I also note that the property hasn’t been sold within the 90 day period specified in section 51(2) RTA.
I am not persuaded that the landlord intended to put the cottage on the market for sale or other disposition when the notice was given. It seems most likely to me that the landlord used the 90 day notice to manipulate the tenant and this is not how the notice provisions of the RTA should be used. When an offer to buy was not forthcoming the landlord – not her daughters - advertised, showed the cottage, and signed a tenancy agreement with a new tenant for an increased rent.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. I find the landlord committed an unlawful act. 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. Exemplary damages may be awarded, up to a maximum of $6,500.00. See sections 60AA and 109(3) and Schedule 1A RTA.
I find the landlord acted intentionally when she gave the notice. The effect for the tenant was that she had the additional cost and hassle of moving herself and her pets. The tenant was frustrated that her move was unnecessary and said it was hard to quantify the effect on her wellbeing. It is in tenants’ interests that they can settle into a rental home without fear of being given a 90 day notice because a landlord “feels badly let down”. There is public interest in landlords paying exemplary damages when there is a breach of the RTA. I allow $2000, which is at the lower end of the scale because I am not aware of any similar orders against the landlord.
I note for completeness that the landlord requested an urgent hearing when she filed her application because she wanted a determination by the Tribunal as to the lawfulness of the notice and time left to put the cottage on the market for sale if the order favoured the tenant. As set out above, the time for assessing intention is when the notice was given, so an earlier hearing would not have changed the outcome for the landlord.

Should the tenant get compensation?

The tenant has claimed $584 as her share of moving costs at the end of the tenancy. The landlord did not agree to pay this amount. Tenants do not have security of tenure, and moving costs are an inevitable part of renting. While the tenant is most likely correct that her move was unnecessary, I have allowed exemplary damages for that breach. I am not persuaded I should also allow moving costs and this claim is dismissed.

Did the tenant comply with her obligations at the end of the tenancy?

The landlord has claimed a large amount of compensation for cleaning the carpets and tidying the area of land around the cottage at the end of the tenancy. She has also claimed the cost of replacing the carpets. Tenants must return the tenancy premises in a reasonably clean and tidy state and remove their rubbish at the end of the tenancy. See sections 40(1)(c) and (e)(iii) RTA.
In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.
The RTA does not require the premises – which includes the gardens - to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable; not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
As to the land around the cottage, I have been provided with photos taken by the landlord. There are quite large hedges which I consider to be a landlord maintenance responsibility. There is no proper lawn, just an area of old paddock, and I find it was left reasonably tidy. Cutting back growth impinging on the villa next door is also a maintenance job for the landlord. I am not persuaded the landlord has proved the gardens were left in an unreasonable condition.
There is a claim for removing rubbish, but the photos do not show any rubbish lying around. The landlord said the contractor picked up half a truck load of pumice and stones and the like, but I do not have photos of that. The landlord has not proved the need for rubbish removal.
The landlord has claimed hours for cleaning and deodorising the carpets in the cottage. She said the smell of dog was so bad that the new tenant insisted she replace the carpets. The landlord has no other evidence to prove the smell was from the dogs, such as a statement from an independent carpet cleaner who has specialist products for deducing smells. In reply the tenant said the cottage leaked during the tenancy and it did smell after it was shut up. I am not persuaded the landlord has proved the smell was from the dogs.
This means the landlord has not proved the tenant should pay for replacement carpet either.
The landlord’s cross application is dismissed. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because she is the most successful party. The landlord’s application for suppression is not allowed because there is public interest in names when the RTA has been breached and exemplary damages ordered.

Tenancy Tribunal case 4807957 — Exemplary damages at 373 South Makara Road, Makara, RD 2, Wellington 6972

At a glance

Tenancy Tribunal case 4807957 — Exemplary damages at 373 South Makara Road, Makara, RD 2, Wellington 6972

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord intend to sell the cottage?

Should the tenant get compensation?

Did the tenant comply with her obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord intend to sell the cottage?

Should the tenant get compensation?

Did the tenant comply with her obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions