What was the outcome of Tenancy Tribunal case 4847226?

The tribunal order states: Kāinga Ora–Homes And Communities is granted possession of the premises at

How much money was awarded in case 4847226?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4847226?

The dispute type was not classified.

Where can I read the official tribunal order for case 4847226?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10547085-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4847226?

The tribunal order states: Kāinga Ora–Homes And Communities is granted possession of the premises at

How much money was awarded in case 4847226?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4847226?

The dispute type was not classified.

Where can I read the official tribunal order for case 4847226?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10547085-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 90 Moa Road, Point Chevalier, Auckland 1022 Tenancy Tribunal Case 4847226 — Tenancy dispute

Order

Kāinga Ora–Homes And Communities is granted possession of the premises at Unit/Flat 1, 90 Moa Road, Point Chevalier, Auckland 1022 at 5pm on Monday 15 July 2024.

Reasons

Both parties attended the hearing which was held by teleconference on 19 June 2024. The tenant’s advocate, Mr Robinson, also attended.
This is a rehearing of the Tribunal’s order of 15 May 2024 which granted termination of the tenancy and granted possession to the landlord. This hearing is heard de novo. That is, I am hearing the case afresh based on the evidence and arguments presented to me.
The landlord says it issued a 90 days’ notice to the tenant on 10 November 2023 terminating her tenancy as it was no longer suitable due to the “ongoing issues of disruptive behaviour and general lack of quiet enjoyment experienced within the neighbourhood”. The tenancy ended on 29 February 2024. The landlord required the tenant to transfer to another property and identified two properties for her to move into.
The tenant has not left the property and the landlord has applied for termination of the tenancy and possession.
The termination notice relied on section 53B of the Residential Tenancies Act 1986 (“the RTA”) which essentially enables a social housing periodic tenancy (as defined in the section) to be terminated by the landlord on 90 days’ notice if the tenant is no longer eligible for social housing or, the social housing provider requires the tenant to transfer to a different social housing, or, in the case of community housing, the provider ceases to be a registered community housing provider.
This section was inserted by section 35 of the Residential Tenancies Amendment Act 2020 (RTAA 2020) and came into effect on 11 February 2021.
The landlord’s position: • The tenant’s tenancy at this address started on 18 February 2022. The tenancy agreement filed is a periodic tenancy. • Since then, there have been multiple complaints regarding disruptive behaviours which have resulted in several police attendance including Armed Offenders Squad, excessive noise complaints, high volumes of individuals in and out of the property suspected to be under the influence of drugs and alcohol, alleged drug dealing, individuals bailed to the property without Kāinga Ora’s permission, and alleged subletting. • Despite multiple attempts at engagement with the tenant to get her agreement to move to another home, including a Tribunal Order to access the property for meth testing, the tenant refuses to meet with the Housing Support Team or provide access to the property. • The landlord now requires the tenant to transfer to another property under section 53B RTA. • The landlord has offered more than one property to the tenant. It is still holding a property for the tenant which was originally one of the properties offered. • The landlord notes that the tenant had since advised that the Sandringham property offered was not suitable due to a protection order in place. It asked the tenant before filing the application to provide proof of the protection order to assist with finding an alternative property but the tenant did not produce this. • The landlord advised that it is still open to working with the tenant to transfer her to a suitable property.
The tenant’s position: • The tenant challenges the landlord’s termination notice and the reasons to move her. • There is a myriad of reasons which constitute the basis for the landlord to have to terminate the tenancy. • The tenant has a disability in terms of comprehending written literature. • These were very serious allegations made. In fairness and in the interest of the tenant, the tenant should have had the evidence clearly put in front of her and for her to have been able to challenge the facts of what is alleged. • The tenant wishes for the Tribunal to have regard to her disability in terms of comprehension. The tenant also seeks to challenge those allegations as a matter of fact and would like to be heard further on the factual basis for the specific reasons why the landlord required the transfer, whether or not it was necessary of desirable. • The other concern is that the relationship between the tenant and the landlord’s tenancy manager has been very difficult. It has been really stressful for the tenant dealing with this tenancy manager. The tenant alleges that the tenancy manager has a personal vendetta against her and did not have an open mind in terms of her situation and the allegations levelled against her. The tenant believes the tenancy manager has behaved unprofessionally and her actions were driven by personal motives. She is not confident that she would receive any fair treatment from the tenancy manager. • The tenant is not happy with the transfer options offered, in particular one of the homes offered is in the area where her ex-husband resides, and this will compromise the protection order he has against her and the arrangements in place.

Was the termination notice valid?

I accept that this is a social housing tenancy to which section 53B RTA can apply.
As noted above, the landlord issued a 90 days’ notice to the tenant on 10 November 2023 terminating her tenancy as it was no longer suitable due to the “ongoing issues of disruptive behaviour and general lack of quiet enjoyment experienced within the neighbourhood”. The tenancy ended on 29 February 2024.
The landlord requires the tenant to move to a different social housing address.
While I have taken into account the tenant’s arguments and empathise with her circumstances, I am satisfied the landlord’s application is properly made out.
When the RTA was being amended by RTAA 2020 to insert section 53B, the Social Services and Community Committee examined the Residential Tenancies Amendment Bill (7 July 2020) and recommended a number of amendments and the proposed section 53B RTA. It was noted that: The Public and Community Housing Management Act 1992 (PACHMA) already allows Kāinga Ora and registered community housing providers (CHPs) to transfer a tenant to different housing within their housing portfolio if they consider this necessary or desirable for any reason. This transfer is effected either by the parties agreeing to the transfer, or the social housing provider using a 90-day no cause termination under the Act and offering a new tenancy. ... We recommend amending clause 35, section 53B(1)(b)(iii), to specify that a landlord under a periodic tenancy may terminate the tenancy by giving at least 90 days’ notice if the social housing provider requires the tenant to transfer to different social housing. The provider must consider that the transfer is necessary or desirable, and that the other housing is appropriate for the tenant’s housing needs.
The recommendations of the Committee were adopted and incorporated into section 53B RTA. As noted by the Tribunal in Kāinga Ora-Homes And Communities v William Tucker [2024] NZTT 4868264: I find that this shows that the legislative intent was to be able to allow social housing providers to give notice to terminate a tenancy when there has been a decision by them that there is desirability/necessity of transfer and there is appropriate housing for transfer.
I find that the landlord here is simply required to have the desire/necessity for the transfer and to be sufficient certain of a transfer to suitable housing as assessed and then to provide notification of the decision to transfer to suitable housing appropriate to the tenant’s needs as assessed. The fact that a transfer to suitable housing was sufficiently certain is shown by the offer of the properties in the landlord’s 90 days’ notice of 10 November 2023.
The tenant also challenges the landlord’s reason for the transfer, but I find this also cannot be successful. This is because this is a decision for the social housing provider.
This is made clear by section 53B(b)(iii) RTA which states: (1)(b)(iii) the social housing provider requires the tenant to transfer to different social housing provided by that provider, and the provider considers that— (A) the transfer is necessary or desirable for any reason; and (B) the other housing is appropriate for the tenant’s housing needs as most recently assessed (regardless of when that assessment took place). [Emphasis added]
This is also reflected in the Social Services and Community Committee’s report referred to above which refers to the provider having the control over this test: Clarifying the role of the Tenancy Tribunal in cases where a tenant is transferred We propose that the Tenancy Tribunal would not be able to review a social housing provider’s reasons for transferring a tenant, including consideration of whether an alternative social housing home offered to a tenant meets the tenant’s housing needs. We consider that the Tribunal should focus on whether the Act’s obligations are met, while existing processes can be used to determine the property’s suitability. We recommend amending clause 35, section 53B(1)(b)(iii), to specify that the determinations that the transfer is necessary and the housing is appropriate be made by the provider. We recommend amending clause 35, section 53B(1)(b)(iii), to specify that the determinations that the transfer is necessary and the housing is appropriate be made by the provider. [Emphasis added]
This recommendation was also adopted into the RTAA 2020/RTA. Therefore, I find that it is not for the Tribunal to consider the reasons for the transfer or whether the alternative housing offered meets housing needs. In any event, there is no reason to doubt that the housing offered is suitable according to the tenant’s housing needs as assessed.
Accordingly, I find the termination notice is valid and the landlord is entitled to possession of the premises.

Should a possession order be made?

On the application of any person entitled to possession of the premises following the termination of a tenancy, the Tribunal must make an order granting possession of the premises to that person (section 64(1) RTA). No possession order may be made more than 90 days after the date of the termination of the tenancy (section 64(2) RTA). However, the Tribunal has power to extend any time limit under the Act relating to the proceedings (section 96 RTA).
The tenancy ended on 29 February 2024 in accordance with the termination notice. The obvious issue is that the hearing on 19 June 2024 was more than 90 days after termination of the tenancy (section 64(2) RTA).
The landlord applied promptly for a possession order on 27 March 2024 following termination of the tenancy. A possession order was initially made by the Tribunal on 15 May 2024, within the 90 day period. However, the tenant then applied for a rehearing of the Tribunal’s order on 22 May 2024 and a rehearing was granted on the papers on 23 May 2024. A rehearing was scheduled for 19 June 2024. The tenant has had the advantage of being able to continue living in the property in the meantime.
The Tribunal has always interpreted section 64(2) RTA in a practical way that takes into account the substantial merits and justice of the case (section 85(2) RTA). An application for a possession order should not be defeated solely because of delay in the Tribunal process when, as here, it was entirely outside the landlord’s control (Wellington Regional Council v Loan (TT Lower Hutt, TT650/96, 30 July 1996); Crockers Property Management v Ransfield [2013] NZTT Auckland 3813; and section 96(2)(a) RTA).
It is in accordance with the substantial merits and justice of this case that, the landlord having established that it is entitled to possession, a possession order should now be made.
At the hearing the landlord expressed that the landlord advised that it is still open to working with the tenant to transfer her to a suitable property. I have granted the landlord possession on Monday 15 July 2024 to allow the tenant time to discuss with the landlord the option of transferring into another accommodation.
The landlord did not apply for the filing fee, so I have not ordered this.
Neither party applied for suppression, so I have not ordered this.

Tenancy Tribunal case 4847226 — Tenancy dispute at Unit/Flat 1, 90 Moa Road, Point Chevalier, Auckland 1022

At a glance

Claims & awards

Tenancy Tribunal case 4847226 — Tenancy dispute at Unit/Flat 1, 90 Moa Road, Point Chevalier, Auckland 1022

At a glance

Claims & awards

Order

Reasons

Was the termination notice valid?

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Was the termination notice valid?

Should a possession order be made?

Topics & place

Residential Tenancies Act sections

Frequently asked questions