What was Tenancy Tribunal case 4925293 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4925293?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925293?

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

Where can I read the official tribunal order for case 4925293?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10881014-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4925293 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4925293?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925293?

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

Where can I read the official tribunal order for case 4925293?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10881014-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4925293 — Leaks

Order

The application is dismissed.

Reasons

Both parties attended the hearings (on 21 August and 26 September 2024) with the owner attending to give evidence by telephone and representatives from the property management company appointed by the owner attending in person. I refer to both as “landlord”. Background and claims
The tenancy goes back to 2009, although the current landlord has owned the premises for approximately the last 4 years and has appointed the property managers to act for him throughout.
There have been previous applications before the Tribunal regarding this tenancy in which work orders have been made and compensation and exemplary damages were awarded to the tenant for failure to comply with those orders in December 2023.
On 7 February 2024, the landlord served a 90-day notice to terminate the tenancy with effect on 6 May 2024, on the basis that the landlord wished to carry out extensive renovations and repairs to the premises; it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken; and the work or material steps towards it were to be taken within 90 days after the termination date. The notice was issued pursuant to section 51(2)(f) Residential Tenancies Act 1986 (RTA).
The tenant vacated the premises on 6 May 2024. After seeing the premises advertised for let on Trade Me on or about 12 June 2024, she lodged an application in the Tribunal on 26 June 2024 seeking a declaration that the termination notice was retaliatory and insincere. In other words, she claimed that the notice was in retaliation for the tenant exercising her rights by bringing previous claims to the Tribunal and was also not given for genuine/valid reasons because the work was not extensive. She seeks compensation of $6500.
There is no dispute that the landlord did carry out works at the property but whether the works were “extensive” is in dispute.
The tenant’s claims are two distinct causes of action. A retaliatory notice is a breach of section 54 RTA and an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500. A notice given without genuine/valid grounds under s51(2)(f) RTA could be an unlawful act in breach of s60AA RTA which provides that a landlord commits an unlawful act if they give or purport to give a notice to terminate knowing that they are not entitled, under the RTA, to do so. A breach of section 60AA is an unlawful act for which exemplary damages may also be awarded up to a maximum of $6,500.
While the tenant asked for compensation in her application, I accept that the amount sought is a reference to the maximum amount of exemplary damages that can be awarded for the above unlawful acts. Therefore, at the first hearing I allowed her to pursue a claim for exemplary damages.
As explained at the hearing, a retaliatory notice claim must be made within 28 working days after receipt of the notice. This requirement has been interpreted strictly by the District Court 1 which has held that the Tribunal does not have jurisdiction to extend the time for bringing a claim with the possible exception of a day or two caused by circumstances beyond the tenant’s control. Therefore, I have determined that the claim for retaliatory notice cannot be pursued by the tenant because she has not filed her claim within the prescribed time limit. Whether the Tribunal should declare the notice to be of no effect on this basis has not been further considered.
The remaining issue is whether the notice given under s51(2)(f) RTA was genuine and the renovations and repairs carried out at the premises were extensive. 1 Realty House Whakatane Limited v Eschbank [2020] NZDC 16084 Relevant law
Section 51 RTA provides that a landlord may terminate a periodic tenancy by giving at least 90 days’ notice if, among other grounds, 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.
Taking a “material step” means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step. The parties views about the renovations & repairs
The owner’s evidence is that while some previous work had been done at the house with the tenant remaining in occupation, he wanted to do a more complete refurbishment and repair to prevent ongoing costs. In particular he felt there needed to be complete repainting, carpet installed and repairs and refurbishment of windows. He also said that he had plans to replace the shower and vanity in the bathroom but has put this work on hold because it was beyond his current budget. He instructed a contractor who he met through his community to come and assess the premises not long after Ms Dean vacated the premises in May 2024.
The contractor, Mr Rama, gave evidence about the owner’s motivation for the work saying that the owner emphasized to him that he wanted the repairs and refurbishment work to be done so that there was “no comeback”. He was frustrated by continuous maintenance costs so wanted to affect a complete refurbishment. Mr Rama noted that this was an old property and much work was needed. However, they had to work to a budget. He provided a copy of his invoice for the work done which was just over $17,000. The work covered: preparation of surfaces, plastering and repainting of the lounge and bedroom walls and ceilings; sanding and repainting bathroom walls and ceiling; extensive work to sand, repair and paint all windowsills, including some work to repair rot in exterior frames; some draught stopping work; replacing door handles and window hardware to ensure smooth opening and closing; installing new curtains throughout; and, arranging another contractor to install carpet in the lounge and bedrooms. He noted that the ceilings were very high making the work more complex. In Mr Rama’s opinion, this work could not be done, and done within the available budget, with the tenant in occupation. Mr Rama also said that there had been an intention to replace the shower and vanity in the bathroom and he did have a plumber lined up for that work. However, this was put on hold because of budget constraints.
The tenant says the renovations were not extensive. They were improvements that were unnecessary and had not been requested by her. She noted that more extensive work had been done in the past when she was actually living at the property. She considers that they could have done the work around her or she could have moved out temporarily while the work was completed. She complains that the landlord did not consider her offer to move out temporarily while the work was done. She cannot understand why the landlord would terminate her tenancy after 14.5 years, when she has consistently paid rent on time. She was sceptical about the work done by the landlord and devastated at losing her home after so many years.

Has the tenancy been validly terminated?

The termination notice complies with the requirements of section 51(3) RTA. It is in writing, identifies the premises to which it relates, specifies the date by which the tenant must vacate, and gives the reasons for the termination.
Under section 51(2)(f) RTA it is necessary to show that the refurbishment and repairs are “extensive”. This question must be considered in the context of whether it is reasonably practicable for the tenant to remain in occupation while the work is undertaken. Works that require the tenant to move out are, by their nature, likely to be extensive. At the same time, an issue that requires the tenant to move out temporarily for a short period, for example for 1 day for plumbing work to be undertaken in a kitchen or bathroom, may not be extensive. Each case will have to be determined on its particular facts and in light of the nature, extent, and effect of the intended work.
In this case, the landlord carried out work to almost all the rooms in the house including two bedrooms, the lounge, and the bathroom. The works described by the landlord’s contractor and detailed in his invoice involved a complete refurbishment of the walls, ceiling and windows throughout the house; installing carpet in the lounge and bedrooms and replacing window and door hardware throughout to ensure they open and closed properly. Evidence was given by the contractor engaged to do the work that in his opinion all that work could not be done, and done within the available budget, with a tenant living there. The works took 3-4 weeks to complete.
I am satisfied on the evidence that the works carried out by the landlord to this property were extensive and it was “not reasonably practicable” for the tenant to remain in occupation during the 3-4 weeks that it took. Section 51(2)(f) does not prohibit the landlord from terminating if the work can be undertaken while the tenant moves out temporarily, and then moves back in. Rather, the provision enables the landlord to terminate if the tenant cannot remain in occupation while extensive work is undertaken. Therefore, although the tenant can live with a relative while the work is carried out, this does not prohibit the landlord from serving notice to terminate the tenancy to allow the renovations to proceed.
I appreciate that the result in this case is harsh on the tenant particularly because the premises have been her home for such a long period of time. Equally, in such a situation, it is likely that wear and tear starts to accumulate and a landlord reaches a point where they would wish to carry out more extensive and long-lasting refurbishment of the premises.
For the reasons detailed above the tenant’s claim must be dismissed. Both parties sought suppression of their names and identifying details. Because the landlord has succeeded in substantially defending the claim, they are entitled to suppression. The tenant has not succeeded and is, therefore not entitled to suppression orders.

Tenancy Tribunal case 4925293 — Leaks

At a glance

Tenancy Tribunal case 4925293 — Leaks

At a glance

Claims & awards

Order

Reasons

Has the tenancy been validly terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has the tenancy been validly terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions