What was Tenancy Tribunal case 4921223 about?

The tribunal order states: The Tribunal orders name suppression to apply for the tenant.

How much money was awarded in case 4921223?

Nt/S]A Written Tenancy Agreement Wit…: $20.44 awarded to tenant

What type of tenancy dispute was case 4921223?

The dispute type was not classified.

Where can I read the official tribunal order for case 4921223?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10604854-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4921223 about?

The tribunal order states: The Tribunal orders name suppression to apply for the tenant.

How much money was awarded in case 4921223?

Nt/S]A Written Tenancy Agreement Wit…: $20.44 awarded to tenant

What type of tenancy dispute was case 4921223?

The dispute type was not classified.

Where can I read the official tribunal order for case 4921223?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10604854-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4921223 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4921223 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
nt/s]a written tenancy agreement within 10 working days of this order. 5. Burt Family Properties Limited to pay [The ten	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$20.44
Total payable by Landlord to Tenant	$20.44

Claims and awards in Tenancy Tribunal application 4921223 — net $20.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
nt/s]a written tenancy agreement within 10 working days of this order. 5. Burt Family Properties Limited to pay [The ten	$20.44	must award the filing paid to commence the proceeding in the Tribunal, which is $20.44. NAME SUPPRESSION
Net award	$20.44
Total payable by Landlord to Tenant	$20.44

Order

The Tribunal orders name suppression to apply for the tenant.
The Tribunal declares that the landlord as Burt Family Properties Limited.
The Tribunal declared the termination notice to be invalid, and of no effect.
Burt Family Properties Limited are directed to provide [The tenant/s]a written tenancy agreement within 10 working days of this order.
Burt Family Properties Limited to pay [The tenant/s] the sum of $20.44 immediately, being the filing fee paid for his application.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. There is a preliminary issue I must consider, which relates to who the landlord is, but then the issues are whether the landlord’s notice to terminate the tenancy is a valid notice, or if it was retaliatory. Based on the outcome from will be the next questions around a requested possession order, and written tenancy agreement.

BACKGROUND

This is a tenancy of long duration. The parties were not exactly sure when the tenancy started, but it was around 11 or 12 years ago.
Both parties agree that there was no written tenancy agreement.
As I will discuss further below, the tenancy premises are owned by Burt Family Properties Limited.
The property has previously been managed by Mr Frank Burt, and [The tenant/s]’s dealings around the tenancy were with Mr Burt. The premises are rurally located, and Mr Burt lives in the main farmhouse, which I understand is about 50 metres from the tenancy premises, so Mr Burt and [The tenant/s] would have reasonably frequent contact.
Based on the information available, Mr Burt and [The tenant/s] have had a good relationship over the years, but it is plain that over the past year or so, that relationship has significantly deteriorated.
More recently, management of the tenancy has been by via an accountancy firm, and one of the accountants in that firm is a co-director of Burt Family Properties Limited.
On 5 April 2024 [The tenant/s] filed his application with the Tribunal.
On 15 April the landlord issued a termination notice, terminating the tenancy on the ground a family member of the owner was to move into the tenancy.
On 20 June 2024 the landlord filed its application.
A hearing was convened in [Event location suppressed] on 19 July 2024. In attendance was [The tenant/s], and representing the landlord Ms Venni and Mr Glen Burt, Frank Burt’s son.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

WHO IS THE LANDLORD?

There is a preliminary issue to determine, that is, who is the landlord? [The tenant/s] says it is Mr Burt, whereas the landlord’s position is that it is Burt Family Properties Limited.
[The tenant/s] told me that the only person he has dealt with over the tenancy prior to the accountancy firm more recently, is Mr Burt. More recently he has been paying the rent into the account for ‘Burt Family properties’.
I asked [The tenant/s] whether he had evidence where Mr Burt had held himself as being the landlord personally. [The tenant/s] referred to the notice to terminate which was signed by Mr Burt himself. 1
[The tenant/s] advised that he could not prove definitively that Mr Burt was the landlord, as opposed to the company, but he has always dealt with Mr Burt, and he has not previously been advised he was acting for a company.
[The tenant/s] states that he believes that the property is a trust, and he understood that Mr Burt is a trustee.
Ms Venni who is from D.B Osborne, the accountancy company, states that the property is owned by a company, and the rent has been paid to the company accounts since 2018. Ms Venni states that communications from [The tenant/s] have referred to the directors of the company, so he likely knew that Mr Burt was a director. 1 I note that following the hearing on reviewing the notice, it is plain that Mr Burt has indicated in the termination notice that it was for the company. Mr Burt appears to have signed the notice, then writes his name, and under his name is type written “Burt Family Properties Limited”, so it looks like the termination notice was issued on behalf of the company.
The property came from an estate, and the company was formed in order to manage the Estate property. Analysis
At the hearing today I advised the parties that in my assessment, the likely landlord is Burt Family Properties Limited, for these reasons:
During the hearing today, we reviewed the company office records. That records that Burt Family Properties Limited was incorporated in 2008, that was some years prior to this tenancy commencing. Ms Venni advised me that the company was formed in order to place an Estate, meaning the tenancy property. Ms Venni states it is the company that owns the property, and while she did not have documentary evidence at the hearing of that, I accept Ms Venni’s statement on that matter. It makes sense then, that the tenancy has always been with the company.
I also accept that Mr Burt is a director of the company, so it would be expected that he would be engaging with [The tenant/s] in relation to the company property (the tenancy) even if [The tenant/s] was not aware of that. As I noted today when dealing with a company, we must deal with humans, and just because we are dealing with a particular person, does not mean we are necessarily dealing with them in their personal capacity.
The evidence is further that [The tenant/s] has been paying his rent into the company accounts at least from 2018.
For those reasons, I consider it is more likely than not that the landlord has always been Burt Family Properties Limited, and the Tribunal declares that to be the case.

WAS THE NOTICE TERMINATING THE TENANCY A VALID NOTICE?

The question then moves to the termination notice. The landlord seeks a possession order, so in order for me to make a possession order, I must be satisfied that the termination notice is valid.
The landlord issued a termination notice dated 15 April 2024. The notice is signed by Mr Burt on behalf of Burt Family Properties Limited. The notice gives 63 days notice on the basis that: The owner of the premises required the premises within 90 days after the termination date (as above) as the principal place of residence (for at least 90 days) for the owner or a member of the owners family.
Because the tenancy was a periodic tenancy, either the landlord or the tenant can give notice terminating the tenancy, providing the notice complies with the RTA. In this case section 51(1)(a) is relevant, that holds: 51 Termination by notice (1) 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; or
As I raised with the landlord today, there is a legal issue that arises, in that section 50(1)(a) allows notice to be given when the owner requires the tenancy as a place of residence for the “owner or a member of the owners family”. In this case the landlord states that the owner is the company, and I have declared that above. As a simple matter of statutory interpretation, the property cannot be needed as a place of residence for the owner or a member of the owners family. That is because a company cannot have a residence as defined in tenancy law, and further a company does not have ‘family’.
I have been unable to locate any cases where a court or the Tribunal have concluded that a company could give notice under section 50(1)(a).
I do note the reference, Residential Tenancies; The Law and Practice 4 th ed, 2012, Lexis Nexus online, where the author (D Grinlinton) states: It would seem that companies and trusts that are owners of premises are not able to demonstrate the special circumstances under this section as they can not personally occupy premises or have family members. In Doward v Transpower New Zealand Ltd the Tribunal considered that an intention by the owner to use the premises as offices did not justify giving a 42 day notice. In Balmoral Properties Ltd v Kelly the company owner purported to give the tenant 42 days' notice as one of the owners of the company required the use of the property for himself. The Tribunal found that the company could not personally occupy the premises, so could not sustain the special circumstances envisaged by s 51(1)(a). Furthermore, even though the owner appeared in the hearing as “agent for the company” he was not appearing in his personal capacity. As he was acting on behalf of the company as owner of the premises, he could not bring an application in such circumstances relating to his own needs.
In relation to the mentioned decision of Balmoral Properties Limited v Kelly [1999] NZTT 699 in that case, the landlord was Balmoral Properties Limited. The landlord gave the tenant, Mr Kelly, notice to terminate the tenancy because it was to be used by one of the directors of the company. The Tribunal did not accept that that notice was valid.
Further, in Wheeler v Davis [2000] NZTT 290, Adjudicator Jim Large needed to consider a case where a trustee was intending to occupy the premises. The adjudicator determined that the situation was analogous to a company, and stated: One difficulty the Landlords may have faced is that there was no evidence from them to the effect that they were indeed the beneficiaries of the Mornington Hills Trust. Clearly, 42 days notice in writing can be given to Tenants by Landlords when the property is required for occupation by the Landlord or a member of the Landlord's family. In this situation the Landlord was a Trust. There is no ability for a Trust to give notice pursuant to s51(1)(a) and seek possession because a Trust cannot occupy the property and neither can a Trust have members of a family which would allow s51 (1)(a) Notice to be given. A Trust is akin to a Company, a legal entity in its own right, and if Trustees were able to personally occupy premises pursuant to s51 (1)(a) after 42 days, there would be nothing to prevent Company Directors doing the same. Such an interpretation is not in accord in my view, with the clear intent of the legislature.
In my assessment, the statutory scheme in relation to terminating tenancies is strict. For the above reasons I cannot interpret section 50(1)(a) as being available for the termination of the tenancy, to allow a member of a directors family to live in the premise. The end result must be that the notice terminating the tenancy was invalid, and is therefore of no effect, meaning [The tenant/s]’s tenancy continues.

WAS THE NOTICE A RETALIATORY TERMINATION NOTICE?

Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, and retaliatory: 54 Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. [Tribunals underlining for emphasis]
The tenant’s position is that the termination notice was retaliatory given the conflict that was ensuing between the landlord and himself at the time the notice was given.
Ultimately I am not called on to reach any firm conclusions in relation to the question of whether the notice was retaliatory, because given my finding the notice was invalid, then it was not a notice that complies with section 51, which is a requirement in order to have received a retaliatory notice.
But I note here that if I did need to consider the matter, [The tenant/s]’s case is arguable. It is important to note that to find the notice retaliatory does not need the notice to be given only on the basis of some disagreement over the tenancy or even mainly because of that. All that [The tenant/s] would need to establish is that the landlord was “partly” motivated, and it is difficult to escape the impression that there may have been some part motivation for ending the tenancy given the dispute between the parties at the time. But ultimately I make no firm findings on that, because I am not now required to.

TENANCY AGREEMENT

An issue has arisen in that the landlord did not provide a written tenancy agreement.
Section 13 of the RTA requires that a written tenancy agreement be provided by the landlord. The version of the RTA that would have applied when this tenancy commenced, required: (1) Every tenancy agreement shall be in writing and signed by both the landlord and the tenant. (2) The landlord shall, before the tenancy commences, provide the tenant with a copy of the tenancy agreement.]
The landlord has not provided a written tenancy agreement, that should be provided now without delay to [The tenant/s]. I direct a written agreement be provided within ten working days of this order.

FILING FEE

Because [The tenant/s] has been wholly successful in his application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case both parties have applied for name suppression. However given only [The tenant/s] has been even substantially successful, I order name suppression for [The tenant/s] only.

Tenancy Tribunal case 4921223 — Tenancy dispute

At a glance

Tenancy Tribunal case 4921223 — Tenancy dispute

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

WHO IS THE LANDLORD?

WAS THE NOTICE TERMINATING THE TENANCY A VALID NOTICE?

WAS THE NOTICE A RETALIATORY TERMINATION NOTICE?

TENANCY AGREEMENT

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

WHO IS THE LANDLORD?

WAS THE NOTICE TERMINATING THE TENANCY A VALID NOTICE?

WAS THE NOTICE A RETALIATORY TERMINATION NOTICE?

TENANCY AGREEMENT

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions