What was Tenancy Tribunal case 4887021 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4887021?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4887021?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4887021?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10798058-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4887021 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4887021?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4887021?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4887021?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10798058-Tribunal_Order_Redacted.pdf.

33B Ngahere Views, Orewa, Orewa 0931 Tenancy Tribunal Case 4887021 — Exemplary damages

Order

The application is dismissed.

Reasons

All parties attended the hearing on 4 September 2024 which was held by video conference.
That hearing was a continuation of an in person hearing held on 12 August 2024, which was adjourned to allow the tenant the opportunity to have the owners’ brother [The landlord’s brother] and their sales agent [The sales agent] appear and give evidence. Background
The tenant had occupied the premises since 17 January 2020.
On 28 February 2024 the property owner [The landlord/s] e-mailed his brother [The landlord’s brother], “As discussed, please confirm that you will be moving into our investment property, 33B Ngahere Views, Orewa upon your return to New Zealand and will take care of rent from there on. We need to give 63 days’ notice to our tenants which we will do today once you confirm.”
On the same day [The landlord’s brother] replied, “Thanks bro, yes I will move in.”
The owners then e-mailed the property manager on 1 March 2024, “My brother is moving back to New Zealand from overseas and wishes to move in with his partner to our property 33B Ngahere Views, Orewa. Hence, unfortunately, we will have to request the tenants to vacate the same. Kindly consider this as their notice. Starting 1st March 2024 for 63 days. In case, the tenant finds anything sooner, they can leave whenever they want. We have been very happy with the tenants and your services. The circumstances have changed and now wishes to move in so I will have to request the tenants to go. Thank you for your understanding.”
That day the property manager issued a 63 day termination notice to the tenant, requiring possession of the premises on 3 May 2024.
The tenant txt the property manager on 12 April 2024, “I have found a place on the coast and being sent an agreement to sign. I just wanted to check in with you first that the move out date of Friday 26 April is OK?”. The property manager confirmed, “The owner has advised that the date for vacate date is fine.” The tenant moved out on 26 April 2024.
Around the time the tenant was vacating the landlord undertook repair and maintenance work on the property.
On 27 April 2024 [The landlord/s] e-mailed [The landlord’s brother], “This is to inform that the tenant vacated the house yesterday. We are getting the paint and other renovation done, which should probably be done in a week’s time. So you can now pack up your stuff and start the moving process in a week.”
His brother replied on 28 April 2024, “Thank you for letting me know. Unfortunately I've had a change of plans, I'm heading to Melbourne soon for long term so I won't be needing to rent out your property.”
The owners signed a listing agreement for the property with [The sales agent] on 29 April 2024 and the property was listed for sale on 13 May 2024.
The tenant was contacted by a neighbour on 15 May 2024 saying, “They have put the house on the market. I thought that was going to happen, as been working loads painting, clearing garden, replace part of fence and looks inside its staged.”
The property did not sell and the owners decided to rent it out again.
On 3 Aug 24 the neighbour advised, “People moving in next door... No I don't reckon it sold or the real estate would have kept the sign up with sold plastered in it-I reckon it's renting.”
Understandably, that raised doubts for the tenant about whether the reason she had been given for her tenancy being ended was genuine. This application was bought seeking exemplary damages for unlawful termination of the tenancy and compensation for losses she says were caused through moving expenses and from having had to take an alternative fixed term tenancy at a higher rent. Termination of the tenancy
The tenant’s application relies on section 60AA RTA which provides that: “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
If a landlord breaches that provision intentionally, exemplary damages of up to $6,500.00 may be awarded.
The landlords’ position is that it was entitled to give 63 days’ notice of termination by s.51(1)(a) under which: “ A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family” The evidence
[The landlord’s brother] has given direct evidence under promise that: a. when he was asked by his brother on 28 February 2024, his intention was to move into the premises; b. he and his partner, who has a property in Melbourne, had been evaluating their options since then; c. in around mid-April 2024, in conversation, he let his brother know that he was less certain that he would require the premises to live in, but did not formally tell his brother that he had decided not to move in, until the e-mail he sent on 27 April 2024.
[The landlord/s] has given direct evidence under promise that: a. when he instructed the property manager to issue the tenant with the notice of termination, based on his brother’s e-mail on 28 February 2028, he believed that the notice was necessary so his bother could move into the premises as his residence; b. the work arranged on the property when the tenant moved out was necessary work that had been arranged to have the premises ready for his brother to move in, not because a decision had already been made to sell the property; c. when [The landlord’s brother] mentioned in mid-April that we was evaluating other options, he and his wife were concerned about the financial implications of the premises being empty. He contacted the sales agent [The sales agent] to ask about the sales process, how long it might take and what the steps would be etc; d. after his brother confirmed on 27 April 2024 that he would not be moving in to the premises, he and his wife decided that they would sell the premises. They asked [The sales agent] to visit which he did on 29 April 2024 and the listing agreement was signed; e. when the property did not sell as hoped the owners decided to relet it.
[The sales agent] testified under promise that: a. [The landlord/s] contacted him mid-Late April saying that he might need to sell his property and to ask what the process would entail and what might slow the process; b. he was then contacted to say that the owners had decided to sell the property. He visited them and signed a listing agreement; c. he was able to have the marketing and staging work done quickly. The property went on the market on 13 May 2024 but did not achieve the price the owners wanted and was withdrawn. Findings
As I said during the hearing, I can absolutely understand the tenant being upset at having been put through difficulty, stress and cost of having to find alternative accommodation for herself and her family, when it turned out the reason she was given for being asked to leave, didn’t happen and the owners did something else with the premises instead.
The question for the Tribunal to decide is whether, in terms of s.60AA, the landlord gave notice to terminate the tenancy, knowing that they were not entitled to give the notice.
The evidence given by the owner [The landlord/s], his brother [The landlord’s brother] and by [The sales agent], is consistent and credibly fits with the documentary evidence.
The essential aspect of that evidence is that when the owners instructed the property manager to issue the notice of termination they, and [The landlord’s brother] believed that the premises were required to provide a home for [The landlord’s brother]. That is a legitimate ground for terminating a periodic tenancy by 63 days’ notice under s.51(1)(a).
The tenant suspects that this was a deliberate ruse to enable the landlord to obtain possession of the property earlier, so they could sell it . A landlord is able to end a periodic tenancy on 90 days’ notice if it is to be sold (see s.51(2)(a)), it would seem rather unnecessary for the owners to go to those lengths to obtain possession 27 days earlier.
For the Tribunal to discount evidence given under promise, about matters a witness has direct knowledge of, there would need to be very compelling circumstantial evidence casting doubt on that direct evidence.
I do not find an evidential foundation to cast doubt on the evidence given by the landlords and their witnesses.
I find it more likely than not that at the time the termination notice was given, the owners believed the premises were required as a home for their brother and the notice was therefore not given in breach of s.60AA.
It is very unfortunate that the tenant lost her home in these circumstances, but I do not find it proved to have been through breach of the landlords’ obligations to her.
The application must therefore be dismissed.

Tenancy Tribunal case 4887021 — Exemplary damages at 33B Ngahere Views, Orewa, Orewa 0931

At a glance

Tenancy Tribunal case 4887021 — Exemplary damages at 33B Ngahere Views, Orewa, Orewa 0931

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