What was Tenancy Tribunal case 4916493 about?

The tribunal order states: Both application and cross application are dismissed.

How much money was awarded in case 4916493?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4916493?

The dispute type was not classified.

Where can I read the official tribunal order for case 4916493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10949685-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4916493 about?

The tribunal order states: Both application and cross application are dismissed.

How much money was awarded in case 4916493?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4916493?

The dispute type was not classified.

Where can I read the official tribunal order for case 4916493?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10949685-Tenancy_Tribunal_Order.pdf.

21A Maugham Drive, Bucklands Beach, Auckland 2014 Tenancy Tribunal Case 4916493 — Tenancy dispute

Order

Both application and cross application are dismissed.

Reasons

Both parties attended the hearing.
The tenant seeks refund of overpaid rent on account that the increased rent charged by the landlord exceeds market rent. The landlord has counterclaimed for outstanding rent of one day.
The parties are required to establish their respective claim to the civil law standard of proof, on the balance of probabilities. Market rent
The tenant claimed that the rent of $645.00 that was increased by the landlord with effect from 7 August 2024 exceeds market rent by a substantial amount. The tenant considers that market rent is $550.00 based on the information adduced to the Tribunal.
Addressing an application for a market rent assessment, sections 25(1) and (3) Residential Tenancies Act 1986 (‘RTA’) provide: (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.
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent.
The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.
The market rent statistics published by Tenancy Services state that median rent for Bucklands Beach for both a 2-bedroom flat and a 2-bedroom house is $600.00. The upper quartile of a two-bedroom flat is $625.00 whereas the upper quartile of a two-bedroom house is $640.00. I consider this property, while it is a stand-alone house, to be more akin to a flat given its lack of a garage or car-port and its close proximity to the landlord’s house at the rear of the property.
In Property Brokers Hawke's Bay Limited v Michaelsen [2024] NZDC 13815, the District Court confirms the soundness of Tenancy Bond data in assessing market rent generally.
The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.
Having regard to the market rent data produced by both parties, and in particular reference to the market rent statistics published by Tenancy Services, I find that market rent for this property is $600.00.
While I find that the rent charged/paid by the tenant of $645.00 exceeds market rent, I consider that the rent of $645.00 does not exceed market rent of $600.00 by a substantial amount.
I adopt the rationale of earlier Tribunal cases that amounts of less than 10% over market rent, is not substantial. $45 is less than 10% of $600.
It is for the tenant to prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. Substantial is defined in the dictionary as ‘of considerable importance, size, or worth’. I do not consider the $45 excess rent above $600 to be of considerable importance, size, or worth in the circumstances.
The applicant’s claim for refund of $400.00 being 5 weeks’ of excess payment of $80.00 over the previously charged rent of $565.00 therefore fails.
The tenant has since signed the bond of $2,140.00 to be refunded to the landlord; I now direct that bond to go to the landlord. Claim for one day’s rent
The landlord seeks the shortfall of a day’s rent totalling $92.14. The tenant sent an email at 11.40pm on 14 August 2024 to say that she is giving 28 days’ notice to end the periodic tenancy on 11 September 2024.
Technically, the tenant’s notice, having been sent after 5pm on 14 August 2024, is deemed to have been sent the next day on 15 August; this results in the tenant only giving 27 days’ notice.
However I find that sufficient notice has been given by the tenant and the landlord is not unduly prejudiced by the one day’s delay in the notice.
The tenant had complained that the increased rent to $645.00 was too much and had been endeavouring to find another property to relocate to. As soon as the tenant found another place to rent, shortly after the date of the increased rent from 7 August 2024, the tenant gave notice to the landlord late at night on 14 August 2024.
Having regard to substantial merits and justice of the case before me, I consider that the parties’ respective claims should lie where they fall.
I therefore dismiss the landlord’s claim for one day’s rent.

Reasons

Both parties attended the hearing.

The tenant seeks refund of overpaid rent on account that the increased rent charged by the landlord exceeds market rent. The landlord has counterclaimed for outstanding rent of one day.

The parties are required to establish their respective claim to the civil law standard of proof, on the balance of probabilities. Market rent

The tenant claimed that the rent of $645.00 that was increased by the landlord with effect from 7 August 2024 exceeds market rent by a substantial amount. The tenant considers that market rent is $550.00 based on the information adduced to the Tribunal.

Addressing an application for a market rent assessment, sections 25(1) and (3) Residential Tenancies Act 1986 (‘RTA’) provide: (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.

The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’. Earlier Tribunal cases suggested a 'rule of thumb' of 10% over market rent.

The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.

The concept of the 'market' is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations. These terms are not defined by the Act. The Oxford English dictionary defines willing as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and reasonable as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".

The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.

The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.

It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. The statistics include median rent as well as upper and lower quartile.

The market rent statistics published by Tenancy Services state that median rent for Bucklands Beach for both a 2-bedroom flat and a 2-bedroom house is $600.00. The upper quartile of a two-bedroom flat is $625.00 whereas the upper quartile of a two-bedroom house is $640.00. I consider this property, while it is a stand-alone house, to be more akin to a flat given its lack of a garage or car-port and its close proximity to the landlord’s house at the rear of the property.

In Property Brokers Hawke's Bay Limited v Michaelsen [2024] NZDC 13815, the District Court confirms the soundness of Tenancy Bond data in assessing market rent generally.

The Tribunal may also consider “such other matters as [it] considers relevant” to market rent. In Housing New Zealand v Hobman (DC Lower Hutt, TT89/97, 27 November 1997) the Court said the other factors to be considered must be of the same kind as the preceding specified factors. It is arguable however that the term ‘other matters’ is broad enough to cover any anything relevant to the ‘reasonable’ expectations of a ‘willing’ landlord or tenant.

Having regard to the market rent data produced by both parties, and in particular reference to the market rent statistics published by Tenancy Services, I find that market rent for this property is $600.00.

While I find that the rent charged/paid by the tenant of $645.00 exceeds market rent, I consider that the rent of $645.00 does not exceed market rent of $600.00 by a substantial amount.

I adopt the rationale of earlier Tribunal cases that amounts of less than 10% over market rent, is not substantial. $45 is less than 10% of $600.

It is for the tenant to prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. Substantial is defined in the dictionary as ‘of considerable importance, size, or worth’. I do not consider the $45 excess rent above $600 to be of considerable importance, size, or worth in the circumstances.

The applicant’s claim for refund of $400.00 being 5 weeks’ of excess payment of $80.00 over the previously charged rent of $565.00 therefore fails.

The tenant has since signed the bond of $2,140.00 to be refunded to the landlord; I now direct that bond to go to the landlord. Claim for one day’s rent

The landlord seeks the shortfall of a day’s rent totalling $92.14. The tenant sent an email at 11.40pm on 14 August 2024 to say that she is giving 28 days’ notice to end the periodic tenancy on 11 September 2024.

Technically, the tenant’s notice, having been sent after 5pm on 14 August 2024, is deemed to have been sent the next day on 15 August; this results in the tenant only giving 27 days’ notice.

However I find that sufficient notice has been given by the tenant and the landlord is not unduly prejudiced by the one day’s delay in the notice.

The tenant had complained that the increased rent to $645.00 was too much and had been endeavouring to find another property to relocate to. As soon as the tenant found another place to rent, shortly after the date of the increased rent from 7 August 2024, the tenant gave notice to the landlord late at night on 14 August 2024.

Having regard to substantial merits and justice of the case before me, I consider that the parties’ respective claims should lie where they fall.

I therefore dismiss the landlord’s claim for one day’s rent.

Tenancy Tribunal case 4916493 — Tenancy dispute at 21A Maugham Drive, Bucklands Beach, Auckland 2014

At a glance

Claims & awards

Tenancy Tribunal case 4916493 — Tenancy dispute at 21A Maugham Drive, Bucklands Beach, Auckland 2014

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions