What was Tenancy Tribunal case 5008728 about?

The tribunal order states: The market rent for the premises is $400.00 per week and that will take effect

How much money was awarded in case 5008728?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5008728?

The dispute type was not classified.

Where can I read the official tribunal order for case 5008728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10915633-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5008728 about?

The tribunal order states: The market rent for the premises is $400.00 per week and that will take effect

How much money was awarded in case 5008728?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5008728?

The dispute type was not classified.

Where can I read the official tribunal order for case 5008728?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10915633-Tribunal_Order_Redacted.pdf.

Unit/Flat 27, 4 Lake Avenue, Frankton, Queenstown 9300, Tenancy Tribunal Case 5008728 — Tenancy dispute

Order

The market rent for the premises is $400.00 per week and that will take effect from 4 November 2024.

Reasons

Both parties attended the hearing on 3 October 2024.
The landlord attended by teleconference.
The tenancy commenced on 8 June 2021.
On 2 September 2024, the landlord gave the tenant a notice advising the tenant of a rent increase. The rent had been $290.00 per week and the landlord gave the tenant notice of an increase to $500.00 per week commencing on 4 November 2024.
The tenant has applied to the Tribunal for a market rent assessment.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
Sections 25(1) and (3) 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.” 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.”
There are three questions to be determined in an application under section 25 RTA: a. What would be a market rent for the property? (see Fisken & Associates Limited v Lecole and another [2023] NZDC 17698) b. Is the proposed rent increase substantially above the market rent? c. If so, what should the rent be?
The tenant explained that he lived in a 17m2 studio apartment. There are approximately 40 units of varying sizes in the apartment complex.
The tenant referred to the Tenancy Services Bond Data showing that for one-bedroom apartments in this locality, the rents varied between $450.00 and $550.00 per week. The tenant went on to say that the data was of somewhat limited value, as data is not provided for studio apartments which are often smaller than a one bedroom apartment.
The District Court in Property Brokers Hawke’s Bay Limited v Michaelsen and ord [2024] NZDC 13815 has recently confirmed the usefulness of the Tenancy Services Bond data in assessing market rent.
The tenant also produced evidence of the rents paid in similar apartments in the same apartment complex. The rent paid in those apartments varied from $330.00 to $360.00. Evidence relating to a one bedroom apartment in the complex showed rent of $490.00 per week.
The tenant said that no improvements had been made to the apartment during the last year which might justify an increase to the rent due to improvements. .
The landlord evidence was more limited.
The landlord said that they had taken over the management of the premises in August 2024.The owner client had instructed them to increase the rent on the premises to $500.00.
The landlord said that she carried out a comparative property analysis. This analysis seemed to consist of looking at properties on trade me and talking to colleagues in the Queenstown area. The outcome of this analysis is that the landlord considered that an appropriate rent would fall between $450.00 and $500.00. No evidence was proffered by the landlord to the Tribunal to support the analysis.
There was a dispute as to the size of the apartment. The landlord said that the apartment was 30m2 with an accessory parking area. The tenant says that it is 17m2 with an accessory parking area .
It is of significance in my opinion that the landlord says that “At the time of assessing these units for the rent increase, I was not aware of the floor size, I simply in the end spoke to colleagues of mine in the area informing them that this was a studio bedsit type of unit to get some idea here.” I am uncertain how a proper comparison assessment could have been conducted without being aware of the size of the apartment.
The tenant provided a copy of a plan obtained of an identical apartment confirming that the apartment is approximately 17m2.
There is clearly a conflict of evidence as to the size of the apartment. The landlord has not viewed the apartment, and is based in Christchurch. The agent provided a copy of the record of title to the complex which sets out the size of the two units that the premises in question form part of. The tenant has had the opportunity to measure and provide plans. In this matter, I prefer the evidence of the tenant.
I have taken into account the evidence from the Bond Centre data and the evidence of rents from the neighbouring apartments. I have been unable to take into account comparative evidence from the landlord, as none has been provided.
I consider that the rent for a studio apartment of this size will logically be less than for a one bedroom apartment. The one bedroom apartment statistics record a rent of between $450.00 and $550.00. The comparison evidence provided by the tenant from this complex shows rents of between $330.00 and $360.00.Taking into account the Bond Centre data and the evidence from the comparative evidence the Tribunal determines that the market rent for the apartment from 4 November 2024 is $400.00.
The proposed rent of $500.00 is $100.00 above the market rent. That is substantially above the market rent, being 25 % more than the market rent.
Both parties applied for name suppression. The tenant has been substantially successful in this hearing and suppression of the tenant name only is ordered. The landlord has not been wholly or substantially successful in the hearing and the landlord application for name suppression is dismissed.

Order

The market rent for the premises is $400.00 per week and that will take effect from 4 November 2024.

Reasons

Both parties attended the hearing on 3 October 2024.
The landlord attended by teleconference.
The tenancy commenced on 8 June 2021.
On 2 September 2024, the landlord gave the tenant a notice advising the tenant of a rent increase. The rent had been $290.00 per week and the landlord gave the tenant notice of an increase to $500.00 per week commencing on 4 November 2024.
The tenant has applied to the Tribunal for a market rent assessment.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
Sections 25(1) and (3) 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.” 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.”
There are three questions to be determined in an application under section 25 RTA: a. What would be a market rent for the property? (see Fisken & Associates Limited v Lecole and another [2023] NZDC 17698) b. Is the proposed rent increase substantially above the market rent? c. If so, what should the rent be?
The tenant explained that he lived in a 17m2 studio apartment. There are approximately 40 units of varying sizes in the apartment complex.
The tenant referred to the Tenancy Services Bond Data showing that for one-bedroom apartments in this locality, the rents varied between $450.00 and $550.00 per week. The tenant went on to say that the data was of somewhat limited value, as data is not provided for studio apartments which are often smaller than a one bedroom apartment.
The District Court in Property Brokers Hawke’s Bay Limited v Michaelsen and ord [2024] NZDC 13815 has recently confirmed the usefulness of the Tenancy Services Bond data in assessing market rent.
The tenant also produced evidence of the rents paid in similar apartments in the same apartment complex. The rent paid in those apartments varied from $330.00 to $360.00. Evidence relating to a one bedroom apartment in the complex showed rent of $490.00 per week.
The tenant said that no improvements had been made to the apartment during the last year which might justify an increase to the rent due to improvements. .
The landlord evidence was more limited.
The landlord said that they had taken over the management of the premises in August 2024.The owner client had instructed them to increase the rent on the premises to $500.00.
The landlord said that she carried out a comparative property analysis. This analysis seemed to consist of looking at properties on trade me and talking to colleagues in the Queenstown area. The outcome of this analysis is that the landlord considered that an appropriate rent would fall between $450.00 and $500.00. No evidence was proffered by the landlord to the Tribunal to support the analysis.
There was a dispute as to the size of the apartment. The landlord said that the apartment was 30m2 with an accessory parking area. The tenant says that it is 17m2 with an accessory parking area .
It is of significance in my opinion that the landlord says that “At the time of assessing these units for the rent increase, I was not aware of the floor size, I simply in the end spoke to colleagues of mine in the area informing them that this was a studio bedsit type of unit to get some idea here.” I am uncertain how a proper comparison assessment could have been conducted without being aware of the size of the apartment.
The tenant provided a copy of a plan obtained of an identical apartment confirming that the apartment is approximately 17m2.
There is clearly a conflict of evidence as to the size of the apartment. The landlord has not viewed the apartment, and is based in Christchurch. The agent provided a copy of the record of title to the complex which sets out the size of the two units that the premises in question form part of. The tenant has had the opportunity to measure and provide plans. In this matter, I prefer the evidence of the tenant.
I have taken into account the evidence from the Bond Centre data and the evidence of rents from the neighbouring apartments. I have been unable to take into account comparative evidence from the landlord, as none has been provided.
I consider that the rent for a studio apartment of this size will logically be less than for a one bedroom apartment. The one bedroom apartment statistics record a rent of between $450.00 and $550.00. The comparison evidence provided by the tenant from this complex shows rents of between $330.00 and $360.00.Taking into account the Bond Centre data and the evidence from the comparative evidence the Tribunal determines that the market rent for the apartment from 4 November 2024 is $400.00.
The proposed rent of $500.00 is $100.00 above the market rent. That is substantially above the market rent, being 25 % more than the market rent.
Both parties applied for name suppression. The tenant has been substantially successful in this hearing and suppression of the tenant name only is ordered. The landlord has not been wholly or substantially successful in the hearing and the landlord application for name suppression is dismissed.

Tenancy Tribunal case 5008728 — Tenancy dispute at Unit/Flat 27, 4 Lake Avenue, Frankton, Queenstown 9300,

At a glance

Claims & awards

Tenancy Tribunal case 5008728 — Tenancy dispute at Unit/Flat 27, 4 Lake Avenue, Frankton, Queenstown 9300,

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