What was Tenancy Tribunal case 4941326 about?

The tribunal order states: The notice issued on 15 June 2024 to terminate the tenancy on 15 September 2024

How much money was awarded in case 4941326?

4 To Terminate The Tenancy On 15 Sep…: $27.00 awarded to landlord

What type of tenancy dispute was case 4941326?

The primary dispute was Rent arrears. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4941326?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10978815-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4941326 about?

The tribunal order states: The notice issued on 15 June 2024 to terminate the tenancy on 15 September 2024

How much money was awarded in case 4941326?

4 To Terminate The Tenancy On 15 Sep…: $27.00 awarded to landlord

What type of tenancy dispute was case 4941326?

The primary dispute was Rent arrears. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4941326?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10978815-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4941326 — Rent arrears

Claims and awards in Tenancy Tribunal application 4941326. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
4 to terminate the tenancy on 15 September 2024 is invalid, and of no effect. 2. The landlord must reimburse the tenant	$27.00		4 to terminate the tenancy on 15 September 2024 is invalid, and of no effect. 2. The landlord must reimburse the tenant

Claims and awards in Tenancy Tribunal application 4941326. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
4 to terminate the tenancy on 15 September 2024 is invalid, and of no effect. 2. The landlord must reimburse the tenant	$27.00		4 to terminate the tenancy on 15 September 2024 is invalid, and of no effect. 2. The landlord must reimburse the tenant

Order

The notice issued on 15 June 2024 to terminate the tenancy on 15 September 2024 is invalid, and of no effect.
The landlord must reimburse the tenant the filing fee of $27.00.
All other claims are dismissed.

Reasons

The tenant’s claim was filed on 09 August 2024 and initially listed for hearing on 26 August 2024. The tenant appeared. [The landlord’s representative 1], who is a director of the landlord, appeared with [The landlord’s representative 2]. The amount of time set aside for the hearing was insufficient. The matter was adjourned part heard and rescheduled for 04 October 2024. The tenant has appeared. [The landlord’s representative 3], the other director for the landlord, has appeared with [The landlord’s representative 2].
The tenant claims: i. That the notice to terminate the tenancy issued by the landlord on 24 February 2024 was invalid, and that the landlord issued the notice knowing that they were not entitled to do so (Section 60AA Residential Tenancies Act 1986 (The “Act’). ii. The tenant challenges a notice to terminate the tenancy, issued by the landlord on 15 June 2024 to end the tenancy on 15 September 2024. The tenant states that notice is: a. Invalid and issued despite knowledge that there are no grounds, (section 51(1)(a) and section 60AA of the Act) b. Retaliatory (Section 54(1) of the Act) iii. The tenant alleges in terminating the tenancy, the landlord has unlawfully discriminated against them based on their employment status (Section 12 (1) of the Act), iv. The landlord has failed to maintain the grounds (namely the lawn) in a reasonable condition (Section 45(1)(b) of the Act).
In relation to claims (i), (ii), and (iii) the tenant seeks exemplary damages (Section 109(3) of the Act). Regarding the failure to maintain the lawn, the tenant seeks compensation.
The onus of proving these claims rests with the tenant. The standard required is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the terms of the agreement or provisions of the Act. Was the notice to terminate the tenancy issued by the landlord on 24 February 2024 invalid, did the landlord issue the notice knowing that they were not entitled to do so.
The landlord is a dairy farmer. The property is a three-bedroom house and one of a number used by the landlord to house farm workers. However, in this instance the tenant is not an employee of the landlord, and the tenancy is not a service tenancy.
On 24 February 2024, the landlord issued a notice to terminate the tenancy on 01 June 2024. The stated grounds for the notice were “Recently it has become apparent that the cabin is not big enough to house single accommodation long term and we need your home you presently rent for farming staff”.
On 04 April 2024, the tenant advised the landlord that they believed the notice was invalid. The tenant cited that, although the landlord had relied on a provision in the Act allowing termination where the landlord customarily used property to house employees, this was not a term of the tenancy agreement.
The landlord states that they believed at the material time they had grounds to terminate the tenancy. The landlord states that the form of agreement they usually used contained a term stating that the landlord customarily used the property to house employees. However, the landlord states they had inadvertently used a version omitting the term. Upon the tenant raising this issue they accepted that the notice was invalid. Law
Section 51(1)(b) states: 51 Termination by notice (1) A landlord may terminate a periodic tenancy by given at least 63 days’ notice if – (a) .... (b) the landlord customarily uses the premises, or has acquired the premises, for occupation by employees of the landlord or by contractors under contracts for service with the landlord, and – (i) that fact is clearly stated in the tenancy agreement; and (ii) the premises are required for that use :....
Section 51(1)(b) applies in situations where the landlord usually uses the premises to house employees or contractors, and that fact is stated in the tenancy agreement.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. Knowledge is not defined in the Act. In the case of Kerr v R [2012] NZCA 212, the Court held that knowledge meant “knowing or believing in a state of affairs”. A party is considered to have known something if they were wilfully blind or indifferent to it. A party is wilfully blind when they deliberately ignore the true situation. Decision
The landlord has produced the version of the agreement they claim they usually use. It is a standard form agreement provided by Tenancy Services. Under the heading “Outline of the provisions of the RTA”, providing guidance when dealing with notice to terminate periodic tenancies, reference is made to the landlord’s ability to terminate the tenancy with 63 days’ notice on the grounds that “the premises are required for an employee of the landlord, and this has been agreed at the start of the tenancy”.
The version of the agreement used by the parties’ states that the landlord may give 63 days’ notice if “the landlord customarily uses the premises for occupation by employees or contractors and the premises are needed for that purpose (and this is stated in the tenancy agreement)”
The guidance provided in either of the standard form agreements, on its own is not a term. The standard form agreement used by the landlord, which is an updated version, in my view more accurately explains the provision in the Act. The guidance clearly states that if the landlord seeks to rely on that provision, they must expressly state the customary usage in the agreement. The agreement in this case does not state customary usage. The notice is invalid and of no effect.
Regarding whether the landlord knowingly issued the notice without grounds, the Tribunal finds that the landlord made an honest mistake misunderstanding the guidance provided to be the required contractual term or statement of customary use. The claim is dismissed. Was the termination notice issued 15 June 2024 retaliatory, invalid, issued with knowledge that there are no grounds.
Dealing with the claim that the notice was retaliatory. Under section 54(1) of the Act a tenant may bring an application that the notice was retaliatory. That is the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.
Such an application must be made within 28 days of receiving the notice. See Realty House Whakatane v Eschbank [2020] NZDC 1608.
The tenant file their application on 09 August 2024, which is more than 38 working days after the notice was served on 15 June 2024. The application to declare the notice retaliatory has been made out of time and is dismissed.
The tenant questions whether the notice is invalid on the basis of ownership.
The grounds for the notice are given as “ .... we have family moving into our [Tenancy address suppressed] farm during the season and hence require [Tenancy address suppressed] that you currently rent for housing them”.
The landlord has produced a typed statement from one of the directors’ children, who is a beneficiary of the trust that owns the landlord company, and their partner stating that they intended moving into the property late September 2024.
The tenant argues that the landlord, a limited liability company, cannot have family members, and cannot therefore seek to terminate the tenancy on the grounds relied upon.
Although they acknowledge that the owner of the property is a limited liability company, an entity they accept cannot have family members, the landlord maintains that the notice is valid on the grounds that the limited liability company is in fact owned by a family trust, who hold a majority share, the trustees of which have family members. Law
Section 51(1) of the Act states 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;
A company is a standalone entity that is separate and distinct from its directors and shareholders and is incapable of having family members. See Burt Family Properties Limited v Tenant [ 2024] NZTT 4921223, 4853400.
While the company is owned by a family trust, the legal owner remains the limited liability company. Therefore, the notice is invalid and of no effect.
Regarding whether the landlord issued the notice knowing that they were not entitled. In this case the Tribunal must be satisfied more likely than not that at the material time the landlord knew that the owner, a limited liability company, could not for the purposes of section 51(1)(a) have family members.
The landlord has since had the benefit of legal advice. While the landlord may now be aware they cannot rely on section 51(1)(a), when they issued the notice, I am not satisfied that they did, nor, on the evidence that they wilfully turned a blind eye to whether they did or not. The claim is dismissed. Discrimination
The tenant claims the reason the landlord issued the termination notices on 24 February 2024 and 15 June 2024 was because of their employment status.
The tenant states that they are a self-employed painter. At the time of entering the agreement they had a substantial painting contract. The tenant sought to use a former employee of the landlord as a referee. The landlord questioned whether the employee concerned was a good reference as they had been convicted of drug offences while employed. The landlord questioned the tenant whether they were also involved in drugs, which the tenant stated they were not. Although the parties entered an agreement the tenant felt that they were being “judged” from the start.
The tenant states there are three incidents where the landlord revealed their bias toward a tenant who is employed.
The first incident occurred around January 2023, when the landlord arrived at the property unannounced. The tenant states the landlord asked whether he was looking after the place, doing drugs, and “what’s going on with work, not been working”. The tenant stated that the weather had been affecting his work. The landlord then left.
The tenant states that about three weeks later, at around 11am in the morning, there was another unannounced visit by the landlord. The tenant states that landlord said, “what’s going on, why are you not working”. The tenant replied that he was unwell, to which the landlord then said, “If you’re not working don’t know if you can live here anymore, will have to think about that”. The landlord then left.
The third incident occurred shortly afterward. The lawn area at the property is substantial, the weather had been inclement, and the lawn had become overgrown. The landlord had been asked to mow the lawn with their ride on mower to return it to a more manageable state. The tenant states they heard the landlord mowing the lawn and went outside to watch from the deck. There was an unlit brazier in the middle of the lawn. The tenant witnessed the landlord throw the brazier to one side. Upon noticing the tenant outside the landlord said, “what are you doing burning things on the backyard”. The tenant states the landlord then said, “you are just full of shit, a bullshit artist, I know your type”. The tenant said that he was going through a difficult time with work and health. The tenant asked whether the landlord had any compassion, to which the landlord laughed and replied “no”. The tenant states the landlord then acted as if nothing had happened and continued to mow the lawn.
The tenant states that there was an inspection in November 2023 but that nothing was raised about employment or health. The tenant states that there was a settled period until about February 2024 when they were issued the first notice.
The tenant states that there are other empty properties nearby owned by the landlord which they had expressed an interest in renting, but the landlord had not responded. That there was another tenant of the landlord nearby who had moved in around the same time but had not been given notice.
The landlord state they recall visiting the property in January 2023 to ask about rent arrears and that the tenant said they had lots of work on. Any discussion about work was in the context of paying the rent. The landlord denies asking about drug use.
The landlord cannot recall the second incident but states that had they been at the property it would have been to ask about rent or mow the lawn. The landlord denies making the comment about remaining at the property if not working, stating that they would not say those kinds of things.
The landlord recalls being at the property to mow the lawn. The landlord admitted to being a little frustrated that items had been left on the lawn. They noted that the curtains were drawn and asked why, to which the tenant became defensive. The landlord stated they asked if the tenant was keeping the property tidy. The landlord denied the comments about the tenant being a “bullshit artist”. The landlord accepted they had asked about the tenants work but only in the context of the tenant being able to pay the rent.
The landlord denied being motivated to terminate the tenancy because of the tenant’s employment status.
The landlord acknowledges owning other properties on the farm but claims some are unsuitable for service or private tenancies. The landlord also states that the location of the tenant’s property, within 200m of a milking shed, is a desirable location for farm workers.
The tenant denies that in January 2023 they were in rent arrears, and that this occurred later. The tenant stated early 2023 they had approached the landlord about them becoming a registered provider with MSD who would then pay any arrears. The landlord agreed. An email produced by the landlord confirms that they became a registered provider on 30 May 2023.
The landlord denies issuing the notice because of the tenant’s employment status, pointing to the fact that they had agreed, and taken steps, to become a registered provider. Law
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation, or termination of a tenancy, in contravention of the Human Rights Act 1999 (Sections 12(1) and 109(3) Residential Tenancies Act 1986).
Section 21 Human Rights Act specifies the prohibited grounds of discrimination, which include: sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $4,000.00.
There must be a causal connection between the discrimination and the landlord’s conduct. In the case of Tuakanau v Griffiths No 2, Palmerston North, TT 133/90, 7 September 1990, the Tribunal considered that the discrimination complained of must be a substantial reason for the conduct. In this case the tenant’s employment status must be a substantial reason for the landlord seeking to bring the tenancy to an end. Decision
[The landlord’s representative 3] appears to highly value a strong work ethic and is likely frustrated by those he perceives as not sharing that ethic. While visiting the property in January 2023, it is likely that he commented about the tenant’s work, along with the tenant’s ability to pay the rent, and maintain the property, having been asked to mow the lawn when the tenant could not do so.
These visits and comments occurred in early January 2023. There were no incidents in April 2023, and in May 2023 the landlord agreed to assist the tenant with paying the rent by becoming a registered provider. The landlord was not obliged to do so and could have allowed the situation to continue, possibly seeking to end the tenancy at a later stage due to rent arrears. However, they did not choose to do so.
I am not satisfied that the tenant’s employment status was a substantial reason for ending the tenancy.
There were no further incidents, and in November 2023, during a property inspection no mention was made of the tenant’s work. The first notice to terminate the tenancy was issued in February 2024, over twelve months after the alleged incidents occurring in January of the previous year. There was a significant elapse of time between the alleged incidents and the first notice. I am not satisfied that there was a causal connection between the landlord’s comments and the decision to end the tenancy.
The property is on a working farm and has been used to house farm workers. Had the tenancy agreement referenced this fact, the notice would have been deemed valid, although the tenant would still have been entitled to challenge it as retaliatory. While the notice issued on 15 June 2024 was invalid because the landlord cannot have family members, I accept that, given the opportunity, members of [The landlord’s representative 3]’s family would occupy the property.
For these reasons, the claim that the landlord has unlawfully discriminated against the tenant on the basis of their employment status is dismissed. Failing to maintain the lawns.
The property has a large lawn area. The tenant did not inspect the lawn thoroughly at the commencement of the tenancy, but accepted that under the terms of the agreement, they are responsible for the maintenance of the lawn and gardens. Initially, the tenant used a small petrol lawn mower, which was unable to cope. Shortly after the commencement of the tenancy a period of rain caused the lawn to become overgrown, and the tenant was unable to return it to a manageable condition. The tenant asked the landlord to mow the lawn with their ride on mower, which the landlord did on three occasions.
The tenant then purchased a second-hand larger mower, which was better suited but still struggled with the lawn. The tenant described the lawn as having rough tufts and potholes, likening it to a farm paddock. Around January 2024, the tenant asked the landlord if they would consider ploughing or adding topsoil to make the lawn easier to mow. Apart from the notice to terminate the tenancy, the tenant states there was no response to this request. The tenant states that they invited the landlord to inspect the lawn, but the invitation was not accepted. The tenant believes the landlord has failed to maintain the lawn in a reasonable condition and is seeking compensation for the larger lawn mower.
The landlord, having personal experience of the lawn, does not believe that there is anything fundamentally wrong and that it is in a reasonable condition. Law
Under section 45(1)(b) of the Act, a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Decision
Determining whether the landlord has failed to meet their obligations will require an objective assessment of any fault. The tenant has produced photographs of the lawn, but while they show its size, none are close enough to show the tufting or potholes described by the tenant. There is insufficient evidence to make a proper objective assessment. The claim is dismissed. Costs
The tenant has been substantially successful, and I order reimbursement of the filing fee. Name suppression.
Both parties seek name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In this case my global assessment is that both parties have been substantially successful. The landlord has successfully defended the claims made against them. The tenant has successfully challenged the validity of the termination notice, and for the time being is able to remain in occupation.

Tenancy Tribunal case 4941326 — Rent arrears

At a glance

Tenancy Tribunal case 4941326 — Rent arrears

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions