What was the outcome of Tenancy Tribunal case 5019275?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5019275?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019275?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5019275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10936478-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5019275?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5019275?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019275?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5019275?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10936478-Tenancy_Tribunal_Order.pdf.

32 Forbes Street, Onehunga, Auckland 1061 Tenancy Tribunal Case 5019275 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended the hearing by teleconference.
On 26 August 2024 the landlord gave the tenant a notice ending the tenancy on 26 November 2024 (“The 90-day notice”) under section 51(2)(f) Residential Tenancies Act 1986 (RTA) for the following reason: Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to live there while the work is undertaken and the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
The tenant claims the notice has been given for an invalid reason and/or is also retaliatory. The tenant wants the Tribunal to declare that the notice is invalid and/or retaliatory and seeks an award of exemplary damages.
For a notice to be declared retaliatory under section 54 RTA the following matters must be satisfied: a. The application must be made in time (within 28 working days of service of the notice); b. The 90-day notice must be a valid notice that complies with section 51 RTA; c. The onus is then on the tenant to prove that in terminating the tenancy, 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.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See ss54(2), (3) and Schedule 1A RTA.
In considering a retaliatory notice claim under s54, the Tribunal may find that the 90-day notice is not a valid notice that complies with s51 either because it has not been given for a genuine reason or does not comply with the notice period. In those circumstances, the Tribunal would simply declare the notice invalid and cannot consider whether the notice would be retaliatory. However, on application by the tenant, the Tribunal can consider whether the landlord has breached their obligations under s60AA.
Under s60AA 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. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See s60AA and Schedule 1A RTA.
I am satisfied that the applicant has applied under s54 within the required statutory time frame. Therefore, I consider the remaining elements required to prove their claim. Background to the claims
There have been previous applications filed with the Tribunal concerning this tenancy. The landlord made an application on 28 November 2023 (under application 4752519) for an order terminating the tenancy, rent arrears and water rates. At the hearing of the landlord’s application, the Tribunal also considered whether a notice of rent increase dated 2 November 2023 was valid to determine the arrears owed. On the day of the hearing, the Tribunal determined that there was an error with the notice but made an order consenting to a variation. A conditional termination order was also made requiring payment of the arrears by a certain date to avoid termination. The tenant applied for a rehearing which was granted on 19 January 2024 solely on the issue of the validity of the rent increase notice. For some reason, there was an extraordinary delay with the rehearing not set down until 20 August 2024. On 23 August 2024, the Tribunal issued its decision after conducting the rehearing, finding that the rent increase notice was invalid and there were no grounds for the Tribunal to consent to a variation of the notice.
The landlord served the 90-day termination notice 3 days after the above decision was made.
In the meantime, the landlord lodged a further claim in the Tribunal (under application 4855340), again seeking termination for rent arrears on the basis that the tenant on 3 separate occasions within a 90-day period had been at least 5 working days in arrears. The application failed due to an error in giving one of the required notices for termination on these grounds. The decision dated 22 June 2024 also noted that the arrears were paid prior to the hearing date.
The above background is relevant because both parties have referred to these previous decisions to support their arguments concerning this application.

Does the 90-day notice comply with s51?

I am satisfied that the 90 day-notice complies with the required notice period. Therefore, I consider whether it has been given for the reasons stated under s51(2)(f).
The landlord says it is his intention to complete substantial repairs and renovations at the premises. His evidence may be summarised as follows: a. The landlord intends to replace the exterior fence. As the tenant has a dog, the dog would need to be removed while this work is completed; b. The kitchen has fallen below par and needs renovation, which means there will be no kitchen facilities available during the renovation. The kitchen was last renovated 24 years ago; c. A second shower needs to be installed downstairs. Tiles in the bathroom are also cracked and need replacement. The bathroom will not be available while this work is completed; d. Approximately, 50% of the interior area requires repainting; e. Overall, this is a 1930s villa that was the landlord’s family home and requires maintenance to bring it up to a high standard; f. The landlord has had informal discussions with a builder friend and a kitchen expert about the work. He has also discussed renovation of the bathroom with his son-in-law who operates a bathroom company. No works have yet been finalised and nor have any contracts been signed; g. The landlord says that he is an engineer and is quite handy so may do some work himself; h. While there is a list of intended works, it will be subject to budget. However, work will be done, and it will take time to complete. Once the premises are vacant, he will be able to finalise plans and contractors to do work; i. Once the tenancy terminates at the end of November, the landlord hopes to complete the work by the end of January 2025; j. The landlord says that he has not discussed this work with the tenant prior to serving the notice. That is because there have been several cases in the Tribunal (as detailed above) in which his claims have been dismissed because of notice errors. He stated that he has “had the rule book thrown at him” and therefore was conscious of ensuring the 90-day notice complied with the rules and for that reason, he did not wish to discuss it with the tenant beforehand, and nor does the RTA require him to do so.
The tenant’s evidence may be summarised as follows: a. The landlord did not advise the tenant of any intention to carry out repairs and renovations; b. The tenant accepts that the exterior fence has fallen down and requires replacement; c. The tenant also accepts that the kitchen cabinetry is dated and there is a crack in the bathroom tiles but both rooms serve their purpose; d. The notice has caught the tenant off guard and it will be very difficult and stressful to find another home before Christmas; e. It doesn’t make sense that the landlord tried to increase the rent by $200pw in January 2024 and is only now proposing renovations.
The landlord’s response to the proposed rent increase in January was that there had been a spike in the market then which he felt justified the increase. However, since then, given that the increase did not eventuate, it has caused the landlord to assess the property and what is needed to bring it to a higher standard.
After carefully considering the evidence and the submissions from both parties, I am satisfied that the landlord has given the 90-day notice for the reasons stated. While he did not discuss his intentions with the tenant prior to serving the notice, he is not required to do so. Equally, while he may not have entered any contracts for works or finalised all the work yet, I am satisfied that he intends to complete extensive works which will take several weeks and cannot be completed with the tenants living there. There will be no kitchen or bathroom facilities and interior painting work would be disruptive.
In summary, I find that the 90-day notice is a valid notice under s51(2)(f) RTA. Has the landlord been wholly or partly motivated to give the notice because of the tenant exercising a right?
The tenant highlights that the 90-day notice was served 3 days after the Tribunal’s decision on 23 August 2024 finding that the rent increase notice was invalid (“the rent increase decision”). Therefore, they argue that this clearly indicates that the landlord was Partly or wholly motivated by the Tribunal decision when giving the notice.
Where the tenant has raised issues prior to service of the 90-day notice, there is a rebuttable presumption that the landlord was wholly or partly motivated by the tenant’s action and the onus shifts to the landlord to prove that they were not so motivated.
While the tenant did not in fact bring the original application before the Tribunal which resulted in the rent increase decision, he did apply for the rehearing, so in that sense he has exercised a right under the RTA.
The landlord disputes that service of the 90-day notice was motivated by the rent increase decision issued days beforehand. He highlighted that the original application to the Tribunal was made by the landlord in November 2023 and heard in January 2024. They waited several months for the rehearing to be set down. It appears that the matter was overlooked. In the meantime, the landlord lodged another application in the Tribunal over rent arrears which was dismissed on 22 June 2024. He questioned what the appropriate stand-down period would be in the circumstances. However, he simply argues that the overriding reason for the notice is that he needs to “get on and fix the place.”
While the tenant argues that the premises serve their purpose, he seems to acknowledge that the premises are out of date and that some work is needed. While a “heads up’ from the landlord might have allayed the tenant’s concerns about the timing of the notice, the landlord is not required to give advance warning.
I observe that there was nothing to prevent the landlord from serving a new rent increase notice that complied with the notice requirements in the RTA. However, he did not do so. Therefore, for many months he ran the risk that the rehearing decision would go against him and he did not take steps to mitigate that risk.
On balance, I am persuaded that while the rent arrears from time to time (which resulted in applications to the Tribunal by the landlord) and the rent increase decision were likely a source of frustration for the landlord, I am persuaded that his overriding reason for issuing the 90-day notice is because it is time to renovate and repair the property.
I also accept that there has been a long passage of time from the original date of the landlord’s application in November 2023, the first decision on 17 January 2024 and the rehearing rent increase decision on 23 August 2024. This supports the landlord’s submission, that there is not a causal connection between the Tribunal decision and the 90-day notice. If the landlord had been so concerned to ensure the rent increase was enforceable, he could have issued a new rent increase notice.
For the reasons detailed above, I find that the 90-day notice is valid, and it is not retaliatory. The tenant’s claims are therefore dismissed.

Tenancy Tribunal case 5019275 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Tenancy Tribunal case 5019275 — Rent arrears at 32 Forbes Street, Onehunga, Auckland 1061

At a glance

Claims & awards

Order

Reasons

Does the 90-day notice comply with s51?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Does the 90-day notice comply with s51?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions