What was Tenancy Tribunal case 4886880 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4886880?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4886880?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4886880?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10405654-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4886880 about?

The tribunal order states: The Tribunal orders suppression of the tenant’s name and identifying details.

How much money was awarded in case 4886880?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4886880?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4886880?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10405654-Tribunal_Order_Redacted.pdf.

114 Duncan Road, Santoft, RD 1, Bulls 4894 Tenancy Tribunal Case 4886880 — Rent arrears

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing by telephone.
The tenant complained that she had not received notice of the hearing. I am satisfied that the tenant is deemed to have received notice of the hearing as the Court file indicates that the notice of the hearing was posted to the tenant at the tenancy address. The tenant’s email address has been added to the Court file so that communications are also sent electronically.
The landlord has made application to the Tribunal for a possession order.
The Tribunal can issue a possession order under section 64 of the Residential Tenancies Act 1986 (“RTA”) on the application of any person entitled to possession of the premises following the termination of a tenancy.
The landlord provided evidence that it personally served a notice on the tenant on 29 December 2023 terminating the tenancy on 31 March 2024, pursuant to section 51(2)(f) RTA which provides: “(2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (f) extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.”
The landlord must establish that the tenancy was validly terminated, so that the landlord was “entitled to possession of the premises”.
In the Court of Appeal decision of Winther v Housing Corporation of New Zealand [2010] NZCA 601, the Court rejected the proposition that the mandatory language of section 64 RTA leaves the Tribunal without any discretion to refuse to make an order for possession. The Court said in its decision: “[74] ... First, in terms of s 64, the TT [Tenancy Tribunal] is obliged to determine whether the landlord is “entitled to possession of the premises”. We do not consider that issue is to be determined solely on the basis of whether, as an incident of ownership, the landlord is entitled to possession. If a landlord has terminated a tenancy ... unlawfully ... we cannot accept that Parliament could have intended that the landlord would be entitled to possession, notwithstanding that unlawful conduct ... No court or tribunal should lend its support to an unlawful act unless Parliament has required it to do so by unequivocal language. There is nothing in the RTA which compels that conclusion. [75] Given the importance accorded by international instruments to the right to be free from arbitrary or unlawful interference with one's home and the protections incorporated in our domestic legislation, the courts will not readily ascribe an intention to Parliament that a landlord may evict a tenant in a case where the decision by the landlord to issue a notice to quit is based on unlawful discrimination. [76] ... The issue of entitlement to possession under s 64 must be established before a possession order may be made. Where it is established that the landlord’s decision is based on an unlawful act, the TT is not obliged to make a possession order and, indeed, should not ordinarily make such an order in the face of opposition from the tenant. [77] The TT could reach that conclusion either on the basis that the landlord is not entitled to possession under s 64 or on the basis that the underlying decision to apply for the possession order is itself unlawful with the consequence that the 90 day notice was also unlawful. [81] We conclude that the TT does have power to refuse to make a possession order based on a 90 day notice if the decision to terminate was made in contravention of the [law]. The District Court has the same powers as the TT on appeal and could likewise refuse to make a possession order in these circumstances. Any appeals to the High Court are limited to questions of law but the Court has wide powers to make such orders as it considers just.”
The issue before the Court in Winther was an allegation that the landlord had acted discriminatorily in relation to the termination, which was unlawful. However, the principle found in that judgment is equally applicable to any termination where there was no lawful basis to terminate the tenancy.
For the Tribunal to grant a possession order, the Tribunal must be satisfied on the balance of probabilities that: a. Extensive alterations, refurbishments, repairs, or redevelopment of the premises are to be carried out; and b. It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and c. The work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
At the hearing the landlord gave evidence that: a. The premises were required for a new farm manager. b. Modern farm managers require a superior standard of accommodation. c. It is necessary to upgrade the house property to a suitable standard. d. A budget of $100,000 had been set for the works. e. The premises had not been inspected to determine the scope of the works but he expected that it would require a new kitchen, new carpet, new door and the removal of two internal walls. f. He estimated that it might take eight weeks to complete the works. g. There had been no discussions with the tenant as to whether it would be feasible for her to remain in the property while the work was undertaken. h. He had not been into the property during the four and a half year term of the tenancy and did not know what would be required, but was sure that the renovations would be substantial.
The landlord did not provide any written or other documentary evidence of the works that would be required, such as a builder’s quotation or drawings, or emails from tradespeople regarding the scope of the proposed works or a start date. No evidence was provided confirming that tradespeople had been engaged.
In the absence of knowing exactly what was required or providing any evidence to support the nature of the works intended, the landlord has not established that the works would be extensive or of such a nature and extent that the tenant could not remain in the property.
Other than the termination notice itself, the landlord has provided no evidence to confirm or support that the work would be commenced, or material steps taken, within 90 days of the termination.
The landlord has not established any of the three criteria which must all be met for the termination notice to be valid.
As the landlord has not proven on the balance of probabilities that the termination notice was valid, the landlord has not proven that it had a right to possession of the premises at the expiry of its notice.
The landlord’s claim must therefore be dismissed.
The landlord’s evidence indicated that the tenant was in substantial rent arrears. The landlord may consider an application under section 55(1)(a) RTA, supported by a full rent statement in the form provided on the Tenancy Services website.
However, the tenant indicated a willingness to leave the property despite her current physical inability to do so. The parties are encouraged to take the opportunity to come to a mutual agreement for an end date for the tenancy.

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing by telephone.
The tenant complained that she had not received notice of the hearing. I am satisfied that the tenant is deemed to have received notice of the hearing as the Court file indicates that the notice of the hearing was posted to the tenant at the tenancy address. The tenant’s email address has been added to the Court file so that communications are also sent electronically.
The landlord has made application to the Tribunal for a possession order.
The Tribunal can issue a possession order under section 64 of the Residential Tenancies Act 1986 (“RTA”) on the application of any person entitled to possession of the premises following the termination of a tenancy.
The landlord provided evidence that it personally served a notice on the tenant on 29 December 2023 terminating the tenancy on 31 March 2024, pursuant to section 51(2)(f) RTA which provides: “(2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (f) extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.”
The landlord must establish that the tenancy was validly terminated, so that the landlord was “entitled to possession of the premises”.
In the Court of Appeal decision of Winther v Housing Corporation of New Zealand [2010] NZCA 601, the Court rejected the proposition that the mandatory language of section 64 RTA leaves the Tribunal without any discretion to refuse to make an order for possession. The Court said in its decision: “[74] ... First, in terms of s 64, the TT [Tenancy Tribunal] is obliged to determine whether the landlord is “entitled to possession of the premises”. We do not consider that issue is to be determined solely on the basis of whether, as an incident of ownership, the landlord is entitled to possession. If a landlord has terminated a tenancy ... unlawfully ... we cannot accept that Parliament could have intended that the landlord would be entitled to possession, notwithstanding that unlawful conduct ... No court or tribunal should lend its support to an unlawful act unless Parliament has required it to do so by unequivocal language. There is nothing in the RTA which compels that conclusion. [75] Given the importance accorded by international instruments to the right to be free from arbitrary or unlawful interference with one's home and the protections incorporated in our domestic legislation, the courts will not readily ascribe an intention to Parliament that a landlord may evict a tenant in a case where the decision by the landlord to issue a notice to quit is based on unlawful discrimination. [76] ... The issue of entitlement to possession under s 64 must be established before a possession order may be made. Where it is established that the landlord’s decision is based on an unlawful act, the TT is not obliged to make a possession order and, indeed, should not ordinarily make such an order in the face of opposition from the tenant. [77] The TT could reach that conclusion either on the basis that the landlord is not entitled to possession under s 64 or on the basis that the underlying decision to apply for the possession order is itself unlawful with the consequence that the 90 day notice was also unlawful. [81] We conclude that the TT does have power to refuse to make a possession order based on a 90 day notice if the decision to terminate was made in contravention of the [law]. The District Court has the same powers as the TT on appeal and could likewise refuse to make a possession order in these circumstances. Any appeals to the High Court are limited to questions of law but the Court has wide powers to make such orders as it considers just.”
The issue before the Court in Winther was an allegation that the landlord had acted discriminatorily in relation to the termination, which was unlawful. However, the principle found in that judgment is equally applicable to any termination where there was no lawful basis to terminate the tenancy.
For the Tribunal to grant a possession order, the Tribunal must be satisfied on the balance of probabilities that: a. Extensive alterations, refurbishments, repairs, or redevelopment of the premises are to be carried out; and b. It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and c. The work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
At the hearing the landlord gave evidence that: a. The premises were required for a new farm manager. b. Modern farm managers require a superior standard of accommodation. c. It is necessary to upgrade the house property to a suitable standard. d. A budget of $100,000 had been set for the works. e. The premises had not been inspected to determine the scope of the works but he expected that it would require a new kitchen, new carpet, new door and the removal of two internal walls. f. He estimated that it might take eight weeks to complete the works. g. There had been no discussions with the tenant as to whether it would be feasible for her to remain in the property while the work was undertaken. h. He had not been into the property during the four and a half year term of the tenancy and did not know what would be required, but was sure that the renovations would be substantial.
The landlord did not provide any written or other documentary evidence of the works that would be required, such as a builder’s quotation or drawings, or emails from tradespeople regarding the scope of the proposed works or a start date. No evidence was provided confirming that tradespeople had been engaged.
In the absence of knowing exactly what was required or providing any evidence to support the nature of the works intended, the landlord has not established that the works would be extensive or of such a nature and extent that the tenant could not remain in the property.
Other than the termination notice itself, the landlord has provided no evidence to confirm or support that the work would be commenced, or material steps taken, within 90 days of the termination.
The landlord has not established any of the three criteria which must all be met for the termination notice to be valid.
As the landlord has not proven on the balance of probabilities that the termination notice was valid, the landlord has not proven that it had a right to possession of the premises at the expiry of its notice.
The landlord’s claim must therefore be dismissed.
The landlord’s evidence indicated that the tenant was in substantial rent arrears. The landlord may consider an application under section 55(1)(a) RTA, supported by a full rent statement in the form provided on the Tenancy Services website.
However, the tenant indicated a willingness to leave the property despite her current physical inability to do so. The parties are encouraged to take the opportunity to come to a mutual agreement for an end date for the tenancy.

Tenancy Tribunal case 4886880 — Rent arrears at 114 Duncan Road, Santoft, RD 1, Bulls 4894

At a glance

Tenancy Tribunal case 4886880 — Rent arrears at 114 Duncan Road, Santoft, RD 1, Bulls 4894

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