What was Tenancy Tribunal case 4858748 about?

This case concerned a boarding house dispute.

How much money was awarded in case 4858748?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858748?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4858748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10535238-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4858748 about?

This case concerned a boarding house dispute.

How much money was awarded in case 4858748?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858748?

The primary dispute was Boarding House.

Where can I read the official tribunal order for case 4858748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10535238-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4858748 — Boarding House

Reasons

Mr Vink appeared for the tenant. [The landlord’s representative/s] appeared for the landlord.
The tenancy commenced on 15 July 2015 and is periodic. At the commencement of the tenancy, the landlord was the [The landlord/s] as agent for [charitable organisation]. The landlord is not a public social housing provider such as Kainga Ora Homes and Communities or a local authority housing provider and can be described as a charitable organisation offering not for profit community housing to people of limited means.
The property is a unit within a complex. The rent at the commencement of the tenancy was $90.00 per week. Shortly afterward, the rent increased to $115.00, then to $135.00 per week, where it remained until 14 February 2024. There are around thirty other residents in the complex who are also tenants of the landlord. Each tenancy has its own agreement.
On 01 November 2023, there was a change of agent, with the [The landlord/s] transferring the management of the property to [The property management company] who now act as agent on behalf of [charitable organisation]. As agent for the [charitable organisation], [The property management company] are entitled to act on their behalf in all matters arising out of the tenancy.
On 28 November 2023, [The property management company] issued a notice to increase the rent to $285.00 per week, effective 14 February 2024.
On 11 April 2024, the tenant, assisted by Mr Vink, filed an application with the Tribunal seeking that the Tribunal determine whether “the rent increase was affordable and under current legislation”.
The tenant submits that the increase from $135.00 to $235 .00 (an increase of 111%) is unaffordable. The majority of residents, including the tenant are on fixed incomes. Notwithstanding an accommodation supplement of $105.00 per week, the rent increase has resulted in material hardship. The tenant argues that “rent affordability is widely accepted (including by NZ Government as 30% of Gross Household income”. As the tenant’s current income is a pension of $578.67, the new rent, without the accommodation supplement, equates to just over 49% of the tenant’s income, and with the supplement around 43% of the tenant’s income.
The tenant submits that overall increase has resulted in financial stress and hardship. Tenants are now forced to access accommodation supplements where previously they had needed to, rely on other services provided by the [charitable organisation] when not previously needed, seek financial relief from a fund set up by the [charitable organisation], and depend on family or whanau for financial support.
During the hearing, the tenant produced a document setting out the rules governing the operation of the previous agent, the Board. Mr Vink, who has claims to have first-hand knowledge of the Board, stated that they were set up by the [charitable organisation] to provide affordable accommodation to those of limited means. Mr Vink referred to paragraph 7 of the document which states, “Rental for the flats is set by Government regulations and will vary from time to time according to the current pension. Rent is at 1/6th (16.7%) of the current National Superannuation”.
The tenant accepted that the document was not dated and had the words “sample” in the top right-hand corner. The tenant states that the Board had met from time to time, and he believed the most recent rent level was set at no more than 25 – 30% of the superannuation. The tenant submitted that to increase the rent outside the guidance previously given by the Board was clearly at odds with the purpose of the [charitable organisation]’s initiative which had been to offer affordable housing to those of limited means, fixed incomes, and little or no assets.
[The landlord’s representative] stated that they are unaware of any rules or guidance provided by [charitable organisation] regarding the rent, and that [The property management company] had acted in accordance with [charitable organisation]’s instructions which are to manage the properties in the complex within the terms of the individual tenancy agreements and provisions of the Act.
[The landlord’s representative] states that following concerns raised by tenants affected by the rent increase [charitable organisation] had agreed to reduce the rent to $240.00 per week. Law
A tenancy agreement may or may contain terms for increasing the rent during the tenancy. However, any term dealing with rent increases must be in accordance with section 24 of the Act which states: 24 Rent increases (1) The rent payable in respect of any tenancy may be increased by the landlord provided all of the following conditions are complied with: (a) the landlord shall give the tenant notice in writing of the increase; and (b) that notice shall specify the amount of the increased rent and the day upon which the increased rent shall become payable; and (c) the day upon which the increased rent shall become payable shall be not less than 60 days (or, in the case of a boarding house tenancy, not less than 28 days) after the date on which that notice is given; and (d) the rent must not be increased within 12 months after the date of the commencement of the tenancy; and (e) the rent must not be increased within 12 months after the date on which the last increase took effect; and (f) [Repealed] (g) a landlord under a fixed-term tenancy— (i) may not increase the rent during the term of the tenancy unless permitted by the provisions of the tenancy agreement to do so; and (ii) may do so only in accordance with this section and any such provisions of the tenancy agreement; and (h) where the Tribunal has made an order under section 25 and that order is still in force, the rent shall not be increased to an amount in excess of the amount specified in the order. (1A) The provisions referred to in subsection (1)(g) may take the form of the provisions set out in Schedule 1. (2) [Repealed] (3) A notice of an increase in rent lawfully given under this section shall, unless it is withdrawn by the landlord, have the effect of varying the tenancy agreement in accordance with the terms of the notice. (4) Where a landlord has given a notice to increase the rent and subsequently realises that, because of— (a) some error in calculating the day on which the increased rent is to become payable or in the manner in which that day is expressed in the notice; or (b) some delay in serving the notice,— the day fixed in the notice for the increased rent to become payable is in contravention of subsection (1), the landlord may, with the agreement of the tenant or (failing such agreement) with the consent of the Tribunal, give to the tenant a further notice varying the original notice so as to bring the terms of the original notice into accord with the provisions of that subsection. (5) Every notice given under subsection (4) shall be in writing, specifying the amount of the increased rent and the day upon which the increased rent shall become payable. (6) The Tribunal shall not give its consent under subsection (4) unless it is satisfied— (a) that the error or the delay was inadvertent; and (b) that the landlord has sought to correct the matter as soon as practicable; and (c) that it would not be unfair to the tenant to allow the original notice to be varied in the manner proposed.
If the tenant considers that the rent being charged exceeds the market rent and does so by a substantial amount, they may under section 25 of the Act apply to the Tribunal for an order determining the market rent.
Section 25 of the Act states: 25 Market rent (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
A tenant may therefore challenge an increase on the basis that it does not comply with the provisions of section 24 of the Act, or under do so section 25 arguing that the rent or increased rent will result in a situation where the rent exceeds the market rent by a substantial amount.
The only other provision in the Act which may apply is section 78(1) (f) of the Act.
Section 78(1) (f) states: 78 Orders of Tribunal (1) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make 1 or more of the following orders: ... (f) where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, an order varying the agreement, or setting it aside (either wholly or in part)..
The Court of Appeal in Smith v Accessible Properties New Zealand Ltd [ 2019] NZCA 38 upheld a High Court decision declining to set aside a 90 notice to terminate on the basis that it was harsh or unconscionable, stating: [10] Section 78(1)(f) states that where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, it may make an order varying the agreement, or setting it aside (either wholly or in part). [11] We agree with Woolford J that Ms Smith faces insuperable difficulties in relying on this provision. First, the power is limited to making an order setting aside or varying the agreement itself, which is not the remedy Ms Smith seeks. Secondly, the power which Accessible Properties was exercising in giving the 90 days' notice was a statutory power and not a power under the tenancy agreement. It is correct that the power to give 90 days' notice is mentioned in Ms Smith's tenancy agreement but under a heading stating, “Outline of the Provisions of the Residential Tenancies Act.” The mere fact of the reference to the power in that agreement cannot in our view convert it from being a statutory power into a contractual power for the purposes of s 78(1)(f). Decision
In this case, as in Smith v Accessible Properties New Zealand Ltd, there is no mechanism contained in the agreement outlining how rent increases are to be applied. The rules document produced does not form part of the tenancy agreement. The landlord has not exercised any rent related term in a harsh or unconscionable manner. Therefore, the parties must refer to the provisions of the Act dealing with rent increases, specifically those contained in section 24. The rent increase notice has been served correctly, specifying the amount of the increase and when it comes into effect. More than twelve months have elapsed since the last increase. There is no challenge that the rent in this case exceeds the market rent.
There are no grounds on which to determine the rent increase harsh or unconscionable under the terms of the agreement or invalid under the Act. The Tribunal cannot declare the rent unaffordable.
The application is dismissed. Name suppression
The landlord has been wholly successful defending the claim and seeks name suppression. The tenant does not seek name suppression and challenges name suppression for the landlord. Both parties have filed written submissions.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
The landlord submits, that as they have been successful that they are entitled to name suppression. They are correct. The landlord submits they have complied with the provisions of the Act and to decline suppression would serve no useful purpose other than unnecessary punishment.
The tenant submits that the case is of interest to both the social housing sector and [the charitable organisation], arguing that decisions made by social housing providers should be transparent. They state a newspaper article concerning the landlord has already been published, and similar applications from other tenants are pending.
The decisions of the Tribunal are published by the Ministry of Justice and available for viewing by the public. The principle of open justice has long been recognised as essential to the rule law. Just should be seen to be done, as stated in R v Liddell [1995] NZLR 538. Before the amendment of the Act in February 2021, with the insertion of section 95A, parties seeking suppression, successful or not, were required to satisfy the Tribunal of specific adverse consequences sufficient to justify an exception to the principle of open justice.
With section 95A, there is now a statutory expectation that parties wholly or substantially successful bringing or defending claims will be granted name suppression. This expectation applies unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The issue in this case is whether the Tribunal can be satisfied that: (i)it is in the public interest to publish the name of the landlord, or (ii)publication is justified because of the conduct of the landlord, or (iii)publication is justified in any other circumstances.
The inclusion of “in any other circumstances” suggests a wide discretion.
In this case there is no suggestion that the [charitable organisation] has acted contrary to the law or conducted themselves in a manner justifying a departure from the statutory expectation.
The Act does not define public interest. The Dictionary of New Zealand Law defines public interest as “[a]n interest in common to the public at large or a significant portion of the public” (P Spiller, New Zealand Law Dictionary (9th ed LexisNexis, Wellington 2019)
In TV3 Network Services Ltd v Broadcasting Standards Authority [1995] 2 NZLR 720, the Court drew a distinction between matters properly within the public interest, in the sense of being of legitimate concern to the public, and those which were merely interesting to the public on a human level. What is in the public interest versus what is merely interesting to the public.
While the Tribunal is satisfied that there is a broad public interest in the relevant facts, particularly regarding tenants on fixed incomes, the law, reasoning, and the decision, I do not consider that the same interest necessarily extends to the name of the landlord. Unlike public social housing providers who have recourse and are responsible for administering of public funds, of whom there is a public interest in proceedings, unless there are good reasons to depart from the statutory expectation, I do not consider that this should automatically apply to organisations or groups offering community housing who do not have recourse to public funds, such as the landlord. See Kainga Ora Homes and Communities v Rangitakatu [2021] NZTT Porirua 4309535
The Tribunal is not satisfied that it is necessary to depart from the statutory expectation. Accordingly, the landlord is granted suppression of their name and the address of the property.

Tenancy Tribunal case 4858748 — Boarding House

At a glance

Tenancy Tribunal case 4858748 — Boarding House

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions