What was Tenancy Tribunal case 4859517 about?

The tribunal order states: The rent increase to $720.00 per week from 1 November 2023 is valid and lawful

How much money was awarded in case 4859517?

Compensation: Breach Of Privacy: $886.00 awarded to tenant; Rent Owing To 10/08/2024: $711.43 awarded to landlord

What type of tenancy dispute was case 4859517?

The dispute type was not classified.

Where can I read the official tribunal order for case 4859517?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726286-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4859517 about?

The tribunal order states: The rent increase to $720.00 per week from 1 November 2023 is valid and lawful

How much money was awarded in case 4859517?

Compensation: Breach Of Privacy: $886.00 awarded to tenant; Rent Owing To 10/08/2024: $711.43 awarded to landlord

What type of tenancy dispute was case 4859517?

The dispute type was not classified.

Where can I read the official tribunal order for case 4859517?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726286-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4859517 — Tenancy dispute

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4859517 — net $174.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent owing to 10/08/2024	$711.43		Rent owing to 10/08/2024
Compensation: breach of privacy		$886.00	breach of privacy
Total award	$711.43	$886.00
Net award		$174.57
Total payable by Landlord to Tenant		$174.57

Both parties attended the hearing on 29 July 2024. [The tenant’s representative] attended with the tenant, and I allowed her to act as her representative, if required during the hearing.

Both parties have made applications to the Tribunal.

I issued an order on 7 August 2024 confirming the termination of the tenancy on Saturday 10 August 2024.

This order decides all remaining claims. Background

The landlord and tenant were friends. The tenancy suited them both.

It was agreed that the rent would initially be $630.00 per week and that the rent would be increased after about six months at around the time that the landlord was required to refix her mortgage.

The tenancy started on 17 March 2023.

The landlord sent a letter to the tenant confirming a rent increase to $720.00 per week as from 1 November 2023 and the tenant paid the increased rent for about 5 months before saying that she thought it was not allowed.

This dispute arose from early April 2024 after disagreement about the rent increase and rent due dates. Both parties feel harassed by the other and have made applications to the Tribunal.

The landlord accepts that she failed to lodge the bond within the statutory timeframe of 23 working days. The bond is now lodged at the Bond Centre. The tenant does not seek a financial remedy for this breach. Issues to be decided

The issues to be decided by the Tribunal (as confirmed with the parties in the hearing) are:- a. Is the rent increase valid? b. Did the tenant exceed the maximum number of occupants allowed at the premises and, if so, should exemplary damages be awarded? c. Does one party owe the other party any money for rent, and if so, how much? d. Did the landlord breach the tenant’s privacy and if so, should compensation be awarded? e. Did the tenant damage the griselinia hedge and grass and, if so, should compensation be awarded?

Is the rent increase valid?

The tenant has applied for a refund of the amount she has paid in increased rent. She says that the rent increase is not valid because it has been made less than 12 months after the tenancy started and she now knows that this is not allowed.

The landlord says that the rent increase is fair because it was agreed to by both parties and has been paid without question until April. She also says that there has been at least one more adult living at the house than originally agreed which is another reason why the rent increase is fair. Her understanding is that if there has been a change of tenancy conditions that benefits the tenant, that a rent increase can be agreed to sooner than 12 months after a tenancy begins. Must all rent increases always comply with section 24 of the Residential Tenancies Act 1986 (RTA)?

Section 24 RTA says that a landlord may increase the rent if they give not less than 60 days’ notice in writing of the amount and date of a rent increase and any increase is not sooner than 12 months from the start of the tenancy or since the last increase.

The question is whether all rent increases must comply with the s24 RTA requirements?

This question has been considered by the High Court of New Zealand in Anquetil v North Canterbury Nassella Tussock Board HC Christchurch AP93/89, 30 October 1989.

The court confirmed that if a tenant freely agrees to a rent increase, then they cannot later go back on that agreement and say that the landlord did not comply with the s24 requirements. 1

The Judge in Anquetil, at page 8, said that the choice of the word “may” in section 24: “... was deliberate and was merely a means of providing for a landlord to increase the rental of premises where the consent of the tenant could not be obtained.”

Two later District Court cases 2 confirm that the relevant wording of s24 remains the same as when the High Court case, Anquetil, was decided.

The High Court and District Court cases mean that s24 RTA is not mandatory where parties have made an agreement to increase rent.

The crucial part of the wording of s24 RTA has not changed and I am satisfied that the above cases still apply.

If there is an agreement between a landlord and a tenant to increase rent, then the requirements in section 24 RTA do not necessarily have to be complied with. 1 The conclusion of the court was that s11(3) RTA does not prevent a tenant from freely agreeing to increase the rent. 2 Morrison v Kerr, 2 April 2013, District Court Tauranga, CIV 2012-070-001086 and The Susan Klein Family Trust v Cheverall [2016] NZDC 1346. Did the parties come to an agreement to increase the rent to $720.00 per week from 1 November 2023?

The parties do not differ greatly on their recollection of discussion at the start of the tenancy. They both said in the hearing that it was agreed that the landlord would be able to increase the rent in about November 2023 as this was when the fixed interest rate on the landlord’s mortgage expired.

The context of this agreement was that the rent agreed at the start of the tenancy was about $20.00 per week less than the maximum the tenant said she could afford and the $630.00 per week rental at that time covered the landlord’s mortgage payments.

The landlord says that the agreement that the rent would increase after six months was recorded in the tenancy agreement. This includes a term that says: RENT INCREASES: The rent may be adjusted after 6 months provided that 60 days written notice is given to the tenant.

The tenant notes the number “6” (in “6 months”) has been written in pen on top of white-out tape and is unsure whether the amendment had been made at the time that she signed the document.

The landlord supplied the original tenancy agreement in evidence at the hearing. White-out tape has been used to amend the agreement in several places. I agree that this is not ideal. Amendments to agreements are best crossed-out and initialled by both parties.

I am satisfied that it is more probable than not that the amendment to the rent increase clause was made before the parties signed the agreement. In any event, the tenant accepts that she orally agreed with the landlord that the rent could be increased after about 6 months.

Both the landlord and tenant also said in the hearing that the coming rent increase was mentioned once or twice during the months after the tenancy started and the tenant did not raise any objections to it.

The next piece of written evidence is an email from the landlord to the tenant that the parties agree was sent on 17 October 2023. It said: Further to our conversation early September 2023, I would like to inform you that your rent will be increasing from $630.00 per week to $720.00 ... Your new rent would take effect from 1 November 2023

At this point, the tenant visited WINZ to arrange the new rent: She sent a text to the landlord: ... so my case managers jus rang and said sumfing about can’t increase rent within 1 st 12months of tenancy n sum other shied about 60day notice, I dnt knw wats allowed n wats not ....

The landlord replied: Correct but remember we spoke about this due to we putting the rent to what you could afford at the time – as was just you and kids then was 3 other adults and was told that the rent would be increased at the time of our refix

The tenant replied: Yip that’s wat I told her their was a verbal discussion wen I moved in .. so that shld be enough. She’s gonna phn me bak. If I hav 2 I’ll top it up neway.

On 30 October 2023, the landlord sent a text asking the tenant: Hi. Did you have any luck with work and income re rental increase?

The tenant responded: Yip went algud ... All set as of this week.

The tenant paid the increased rent of $720.00 starting from the payment made on 30 October 2023. 3

The first indication of any dispute or question about the rent increase was in early April 2024 when the parties were communicating about various issues, and after both had sought advice from Tenancy Services.

My decision is that the tenant did freely agree to the increased rent. She agreed to this in principle at the start of the tenancy, and then agreed to the specific amount once this was confirmed by the landlord in the email on 17 October 2023.

[The tenant/s] had the opportunity to contest the rent increase after the WINZ case manager questioned this. [The tenant/s] texts to the landlord show that she had been told by WINZ of the usual requirements (60 days’ notice and no increase within 12 months). Despite this, she chose to continue with the increase and paid rent at the increased rate for at least 5 months before objecting.

The High Court Anquetil case means that the tenant cannot later change her mind and say that the landlord did not comply with s24 RTA.

The agreement between the parties to increase the rent to $720.00 per week from 1 November 2023 is valid. The tenant’s application for a refund of the rent increase is dismissed. 3 It was discovered in the hearing that the landlord’s rent ledger incorrectly recorded the payments on 30 October 2023 and 5 November 2023 as $630.00 instead of the $720.00 actually paid. Did the tenant exceed the maximum number of occupants allowed at the premises and, if so, should exemplary damages be awarded?

The landlord says that the tenant exceeded the maximum number of occupants at the premises.

The tenancy agreement records that the maximum number of occupants at the premises is 2 adults and 3 children.

After hearing the evidence from both parties, my decision is that there is no breach by the tenant because:- a. The landlord initially agreed to one extra occupant on the understanding that this was only temporary ([The tenant/s] said it was intended that her brother would be moving overseas); b. The evidence is unclear as to how long the other additional adult lived there; c. The landlord agreed to the additional occupant as a variation to the tenancy agreement that benefits the tenant, at the time the parties agreed to the rent increase (see the email notice from the landlord to the tenant on 17 October 2023). Section 28 RTA anticipates that parties may agree to a rent increase in these situations.

This claim is dismissed.

Does one party owe the other party any money for rent, and if so, how much?

I explained to the parties during the hearing how rent is calculated, and we all counted the rent payments made.

Both parties provided evidence after the hearing (as directed) to show that the tenant has paid rent of $1,440.00 after the hearing date.

The new rent ledger provided by the landlord after the hearing does not show the rent increase as starting from 1 November 2023 and does not show an accurate rent credit or arrears balance.

The tenancy ended on 10 August 2024.

I will now calculate whether there is any rent owing. Calculation of total rent due over the whole tenancy

The total amount of rent due up to the end of the tenancy on 10 August 2024 is: 17 March 2023 to 31 October 2023 at $630.00= $20,610.00 (32 weeks 5 days) 1 November 2023 to 10 August 2024 at $720.00= $29,211.43 (40 weeks 4 days) Total rent due= $49,821.43 Calculation of total rent paid over the whole tenancy

The total amount of rent paid up to the end of the tenancy on 10 August is: 32 payments of $630.00 per week = $20,160.00 (includes 2 weeks paid in advance on 2 March 2023) 38 payments of $720.00 per week= $27,360.00 1 payment of $1,440.00= $ 1,440.00 5 payments of $30.00= $ 150.00` Total paid= $49,110.00 Calculation of whether there is any rent owing by the tenant

The above calculations mean that I have determined that the tenant owes rent of $711.43 ($49,821.43 - $49,110.00).

I have recorded this in the orders. Did the landlord breach the tenant’s privacy and if so, should compensation be awarded?

[The tenant/s] has made a claim that the landlord has breached her privacy. She says that the landlord talked about the rent situation outside of the landlord-tenant relationship and that this information got back to the father of her children and caused significant conflict affecting her parenting arrangements.

The landlord accepted that the breach occurred and apologised. I agree that the landlord did breach the tenant’s privacy. It is important that tenancy matters are not shared or discussed.

I find this to be a breach of section 38(2) RTA which says that a landlord must not interfere with the reasonable peace, comfort or privacy of a tenant in their use of the premises.

The tenant said that the stress caused her to take time off work and caused her loss. The evidence about any loss of wages is not clear enough to assess. However, the Tribunal can and does award compensation for stress and anxiety and I find that the amount claimed is reasonable in this case. The information shared by the landlord brought the tenant’s parenting arrangements unfairly under scrutiny. I award the amount of $886.00.

For clarity, this breach is not one for which exemplary damages or a fine can be awarded as that only applies if a landlord has persisted in their behaviour to the extent of harassment; see section 38(3) and Schedule 1A RTA. Did the tenant damage the griselinia hedge and grass and, if so, should compensation be awarded?

The landlord has made a claim for damage to a hedge that borders the property and is alongside part of a stormwater drainage area next door.

I made an oral decision in the hearing that there was insufficient evidence to satisfy me that the tenant or someone living at the premises or under her control was responsible for the damage. I suggested that the landlord talk to the neighbours as the tenant said that the hedge on the other side of the stormwater area was also dead.

The landlord can file a new claim on this issue if she has new evidence. Bond and end of tenancy matters

These applications did not include the bond. If the parties cannot agree on end of tenancy matters and the refund of the bond, either party is able to make a new application to the Tribunal to have this resolved.

The parties can request the assistance of a mediator to try to come to an agreement.

If a landlord wants to make a claim on all or part of a bond, they must file their own application and set out their counterclaim; see s22B(2) RTA. Filing fees and suppression of names

Both parties have been partly successful in their claims, so I make no order about filing fees and suppress both parties’ names from the published order.

For completeness, I note that the tenancy agreement did not include the required insurance and healthy homes standards compliance statements. I have not awarded compensation or exemplary damages for these breaches because the tenant did not apply for them.

Reasons

Claims and awards in Tenancy Tribunal application 4859517 — net $174.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent owing to 10/08/2024	$711.43		Rent owing to 10/08/2024
Compensation: breach of privacy		$886.00	breach of privacy
Total award	$711.43	$886.00
Net award		$174.57
Total payable by Landlord to Tenant		$174.57