What was Tenancy Tribunal case 4874247 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4874247?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4874247?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4874247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10758481-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4874247 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4874247?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4874247?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4874247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10758481-Tribunal_Order_Redacted.pdf.

12 Melanesia Road, Kohimarama, Auckland 1071 Tenancy Tribunal Case 4874247 — Leaks

Order

The tenants’ names and identifying details must not be published.
The application is dismissed.

Reasons

The tenants attended the hearing in person.
Tamara Willis and Andrea Boussicot attended for the landlords’ property manager, Ray White.
The tenants claim that the landlords notice terminating the tenancy is bad for being retaliatory reasons and for being given on spurious grounds. Background
The tenancy began on 16 December 2020 and ended on 9 October 2023.
The weekly rental for the premises was $1,450.00 per week, placing the property at the higher end of the Auckland rental market.
The house has four bedrooms and two bathrooms. It is solidly built and well designed. It was constructed in about 2008 and remained in sound condition at the time of the tenancy, although the carpets were overdue for replacement and there was a leak issue with one of the bathrooms.
Among the premises’ attractions is its location in a safe, pleasant suburb in proximity to desirable schools.
A feature of the tenancy was that the landlords lived next door when they were not overseas, which was for about half the year. As often happens where the landlords live next door to the tenancy address, the proximity of the landlords to the tenancy tends led to tensions. One of the landlords regularly went to the tenancy to do work on the premises or for other reasons.
The landlord’s persistent visits had started to wear on the tenants, and it came to a head in January of 2023, when on 2 January 2023 the tenants emailed Ms Boussicot: This past week we asked [a landlord] not to come by to do the work after initially approving the request... Our patience has been wearing thin, as [a landlord] has a record of entering the property without due notice on a more frequent basis than is reasonable. This has resulted in a regular breach of our quiet enjoyment and of the Residential Tenancies Act. In recent months, the instant our car pulled up in the garage after a long trip away in December, he came in to discuss outstanding work. [A tenant] was unloading luggage, jetlag from 24 hours of traveling, and the kids were sleeping in the car as the owner invited himself into the garage. Later that week, he engaged [a tenant] through the dining window about some other work – [a tenant] was dressed in pajamas and having morning coffee. This follows a track record of similar behaviour. ... We just kindly ask that any work be scheduled and conducted in the same way a good, professional tradesmen would conduct their work. We request that the owner be conscious and respectful of personal space and privacy. We know that the work needing to be done requires an agreed upon time.
After this email, the landlord refrained from going to the premises without notice and communications were generally through the property manager.
About six months after this episode, on 11 July 2023, the landlords issued the tenants with a 90-day notice through Ray White terminating the tenancy on the ground that the “the landlord wishes to retake possession of the rental dwelling you are renting because the landlord plans to conduct alterations or refurbishment or repairs or redevelopment and it would not be reasonable practicable for the tenant to remain in occupation while the work is undertaken.”
In her covering email attaching the notice, Ms Boussicot commented that the landlords’ “current plans would be to put the two houses on the market after” the “renovations and work on the property which make it impractical for you to stay in place as it be a work sit for more than a month”.
The tenants moved out as required on 9 October 2023. The landlords never advertised the premises for sale. They advertised the premises for rent eight weeks’ later, on 6 December 2023, on Trade Me. Was the landlords’ notice retaliatory or invalid?
The tenants’ case is that the landlords’ notice was bad for being retaliatory or for the stated grounds of extensive refurbishments not being genuine. Legal principles
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. 1
Similarly, landlords must not give a notice to terminate the tenancy knowing they are not entitled to do so. 2 Breaching this obligation without a reasonable excuse is also an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 3
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.
To be “motivated by” something, means the “thing” was a factor in the landlord’s decision to terminate.
The thing relied on does not have to be the only thing; it only needs to be a contributing factor.
The tenant in this case submits a relevant “thing” was the tenants exercising their right to ask the landlords not to unlawfully enter the premises without notice and not to interfere with their reasonable peace, comfort, or privacy. 1 Residential Tenancies Act 1986 (RTA), s 54(2), (3) and Schedule 1A. 2 RTA, s 60AA. 3 RTA, Schedule 1A.
A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory. 4
Importantly, the applicants bear the onus of proving the landlords were in breach upon the standard of probabilities (namely, proof at the level of moral certainty of being more probable than not). Discussion
The landlords’ timing of the notice was given about six months after the tenants complained.
Ms Boussicot denies the landlords were perturbed by the complaints. She says the landlords were seriously interested in selling the properties. They had value appraisals done to that end. The renovation work was needed because the carpets were getting threadbare. Nor was the work a simple recarpeting. The landlords replaced the carpet with a modern vinyl “wooden look” product which required the concrete floors to ground and levelled before the vinyl planks could be installed. One of the landlords also intended to do a lot of the internal painting themselves and presumably that would have taken longer than a professional to do.
Ms Boussicot produced invoices that proved the landlords spent over $8,000.00 to replace the carpet. She submitted the work probably took three weeks based on the invoice being submitted one month after the tenancy ended.
Ms Boussicot accepts the landlords did not ultimately put either property on the market. She says the market conditions were not favourable and the landlords preferred not to sell in those conditions.
The tenants had not seen the invoices until the hearing but are not persuaded the termination notice was properly given. They would have been content to relocate for a while for the improvements to be done but were not given that opportunity. The flooring work was not major and could easily have been done in about a week. Nor was the flooring work necessary. The carpets were worn out at the beginning of the tenancy and that was not an issue for them. 4 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that Mrs Woodman acted reasonably on the basis of the information known to her...I am not called upon to decide whether the complaints were justified, only to decide whether Mrs Woodman gave notice in retaliation or for genuine and fair reasons.”
The tenants submitted the housing market was no worse at the end of the tenancy than it was when the landlords gave notice, so the landlords’ failure to attempt to sell the premises pointed to the notice being invalid. When the landlords returned from overseas in September, shortly before the tenancy ended, the landlords were unfriendly, which is consistent with the landlords wanting to get rid of them because they resisted the landlord’s coming to the premises unannounced in breach of their tenant rights.
Having seen and heard all the evidence and submissions, in my view the landlords’ stated reason for the notice of wanting to carry out significant renovations during which it would not be practicable for the tenants to remain is plausible. The concrete grinding and levelling compound work was bound to take a significant period, perhaps over a week. One of the landlords wanted to do work on the premises himself which probably would have had to occur after the flooring was completed and able to be walked on.
The eight-week interval before the premises was readvertised for rent indicates that the premises were genuinely not suitable for tenants to live in for at least several weeks after the tenants moved out.
In summary, the landlords’ notice is consistent with subsequent events.
The tenants’ claim is not without merit. It is plausible also.
However, the tenants do not have any “gotcha” type evidence that belies what the landlord’s claim.
Nor does circumstantial evidence cumulatively persuade me that the notice was bad. The tenants’ earlier complaint could feasibly have riled the landlords but then again it may not have. They may believe that the landlords were palpably unfriendly upon their return to New Zealand the month before the tenancy ended. However, all the evidence taken together still does not show that the landlords had an animus towards the tenants which motivated the notice. Conclusion
The tenants bear the onus of proving their claims on the balance of probabilities.
They have not discharged the onus.
It follows the claims are dismissed. Non-publication
The tenants seek non-publication of their names and identifying particulars.
Section 95A(1) and (4) of the Residential Tenancies Act 1986 (RTA) provide: 95A Suppression orders (1) The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case. ... (4) The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
While the tenants failed in these proceedings, they were properly brought and responsibly conducted.
The underlying reasons for s 95A(1) of avoiding the chilling effect that publication might have on tenants legitimately bringing proceedings apply here.
In that context I turn to consider s 95A(4). The landlord’s interests are neutral. The tenants’ interests favour non-publication because they may have difficulty obtaining rental accommodation in the future if their names are published. As mentioned, I consider the public interest in avoiding the chilling effect that publication might have on tenant contemplating bringing properly brought proceedings applies.
Therefore, the Tribunal orders non-publication of the tenants’ names.

Tenancy Tribunal case 4874247 — Leaks at 12 Melanesia Road, Kohimarama, Auckland 1071

At a glance

Tenancy Tribunal case 4874247 — Leaks at 12 Melanesia Road, Kohimarama, Auckland 1071

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions