What was the outcome of Tenancy Tribunal case 5027624?

The tribunal order states: Mark Officer and Doris Kauri must pay Jamia Investments Limited $1,718.15

How much money was awarded in case 5027624?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,971.15 awarded to landlord

What type of tenancy dispute was case 5027624?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5027624?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11400354-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5027624?

The tribunal order states: Mark Officer and Doris Kauri must pay Jamia Investments Limited $1,718.15

How much money was awarded in case 5027624?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,971.15 awarded to landlord

What type of tenancy dispute was case 5027624?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5027624?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11400354-Tenancy_Tribunal_Order.pdf.

59 Bannister Street, Masterton, Masterton 5810 Tenancy Tribunal Case 5027624 — Rent arrears

Claims and awards in Tenancy Tribunal application 5027624 — net $1,718.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,971.15	Rent arrears
Filing fee reimbursement	$27.00	must award the filing paid to commence the proceeding in the Tribunal, which is $27.00 R Woodhouse 05 February 2025 ___________________________________________…
Net award	$1,718.15
Total payable by Tenant to Landlord	$1,718.15

Claims and awards in Tenancy Tribunal application 5027624 — net $1,718.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,971.15	Rent arrears
Filing fee reimbursement	$27.00	must award the filing paid to commence the proceeding in the Tribunal, which is $27.00 R Woodhouse 05 February 2025 ___________________________________________…
Net award	$1,718.15
Total payable by Tenant to Landlord	$1,718.15

Order

Mark Officer and Doris Kauri must pay Jamia Investments Limited $1,718.15 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,280.00 (6388394-002) to Jamia Investments Limited immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. As will be relevant below, during the tenancy there was a change of landlord, but the tenancy has now ended. Ultimately, the tenants bring a DescriptionLandlord Rent arrears$2,971.15 Filing fee reimbursement$27.00 Total award$2,998.15 Minus bond$1,280.00 Total payable by Tenant to Landlord$1,718.15 number of claims, and the landlord seeks an order for the payment of rent arrears.

BACKGROUND

The tenancy commenced on 16 July 2021. The co-tenants are Doris Kauri and Mark Officer. The landlord at that time was Sally Fitzgerald.
The tenant’s position is that the premises they rented are an unlawfully converted shed, and therefore unlawful residential premises as would be defined in the Residential Tenancies Act 1986 (RTA). I will discuss that further below.
In mid-2024 the property was sold to Jamia Investments Limited (who I will now refer to simply as Jamia), with a settlement on 12 July 2024. Therefore from that time the landlord changed from Ms Fitzgerald to Jamia. One of the matters of concern to the tenants is that they do not consider they were properly advised of the change in landlord, and that is a claim before the Tribunal.
In any event, the tenants raised concerns with the new landlord about the state of the premises and whether it was lawful. As confirmed in the documentation on file, and after hearing from Jamia at the hearing, the new landlords were equally concerned
Jamia issued a 7-day notice of termination on 29 July 2024, but after the tenants raised concerns about whether that notice could correctly be given, the landlords replaced that with a 90-day termination notice on 5 August 2024, terminating the tenancy as they wished to undertake substantial work to the premises.
The tenants stopped paying rent to Jamia.
The tenants then filed two applications with the Tribunal: a. Application 5016908, being an application against Jamia Investments Limited / Jacqueline Mary Kirk; and then b. Application 5016994, being an application against Scruffy Limited / Sally Claire Fitzgerald
The tenants say that following advice they received from Tenancy Services, around the filing of two applications for the same matters in the same tenancy, they withdrew the application against the original landlord, that is application 5016994.
Jamia filed an application with the Tenancy Tribunal (application 5027624) seeking an order for the outstanding rent arrears. Hearing – 1 November 2024
I convened a hearing in Masterton on 1 November 2024, to hear the tenants application against Jamia (5016908).
As I raised with the tenants, some of what they are claiming relates to claims against a different landlord, and confirmed that Ms Fitzgerald would fairly be the respondent for claims before 12 July 2024, and Jamia for claims following.
I issued an order that same day, adjourning the hearing, and ordering that Ms Fitzgerald be joined as a respondent.
I also note that at that hearing, the tenants returned the keys to the premises to the landlords, so possession was returned on 1 November 2024. Application against Ms Fitzgerald discontinued
On 4 February 2025, the tenants filed with the Tribunal, a notice of discontinuation in relation to the claims against Ms Fitzgerald (and the company she was a director of). In the covering email, the tenants advised they wished to proceed only in relation to the claims against Jamia. Hearing – 5 February 2025
The hearing was reconvened in Masterton on 5 February 2025. In attendance was one of the tenants, Mr Officer, and representing the landlord was Ms Kirk and Ms Batty.

CLAIMS TO BE DETERMINED

At the first hearing, the tenants confirmed the tenant’s claims are as follows: a. General damages b. Exemplary damages for a breach of the Healthy Homes Standards c. Failure to notify a change of landlord d. Exemplary damages for unlawful residential premises e. Retaliatory termination notice f. Unlawful termination notice
The landlord’s sole claim was confirmed to be rent arrears.

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.

ANALYSIS

The Tribunal must consider claims from both the tenants against Jamia, and Jamia against the tenants. I will consider each in turn. TENANT’S CLAIMS Claim 1 – General Damages
Mr Officer states that the situation he has been in with regard to the tenancy, has caused him mental stress. Mr Officer states that when the new owners came into the house, they made various comments about the state of the building. After the tenants contacted the council about the state of the premises, the landlord gave notice terminating the tenancy.
The landlord’s position is that at the initial inspection, the new landlords did go around the premise, and engaged with the tenant. It was pointed out that some work was needed to the premises. The landlord states that after finding the premises were unconsented (a shed), they received advice from Tenancy Services and terminated the tenancy. The landlord said that the original inspection “scared them” given the deficiencies with the premises. The landlord is now working to get the premises compliant and approved as a dwelling with the council. The landlords state that on the advice of Tenancy Services, the 7-day notice was given as the premises were uninhabitable.
The landlord states major work is needed, including the building of fire walls given the proximity to the boundary.
In conclusion, the tenant states that they feel they are being discriminated against. While the premises were draughty and cold, it was nevertheless liveable. The tenant said they were not aware of the sale of the premises, the first they knew about it was when the new landlords arrived. Analysis
The tenant has claimed general damages against Jamia. General damages can be ordered if there is a breach of the landlord (Jamia in this case) which caused some mental effect such as distress or even inconvenience.
As I raised with the tenant at the first and second hearing, if the tenants were to bring claims around the grant of a tenancy, then the respondent for that needed to be Ms Fitzgerald, who was the landlord at that time. Ms Fitzgerald was joined as a party to this hearing, but the tenants have withdrawn their claim against her.
But from what I can see, the actions of Jamia were entirely reasonable. Jamia purchased the premises, not realising the full issues with the tenancy premises. I can see that when they became aware of this, they acted efficiently. The tenancy was terminated so that the defects with the dwelling could be addressed, and in the circumstances, I don’t consider the landlord had any reasonable alternate option. I will discuss this further below.
I accept that has caused distress and inconvenience to the tenants, but that has arisen from the circumstances of the tenancy being terminated, which I consider was a lawful termination notice.
As far as the actions of Jamia were concerned, as I find their actions were lawful (as I will discuss further below), I can see no basis to order general damages, so this claim is dismissed. Claim 2 - Exemplary damages for a breach of the Healthy Homes Standards
The tenant states that the prior landlord gave them a Healthy Homes Standards (HHS) certificate for the wrong dwelling. I raised with Mr Officer that what he is claiming is a breach of the prior landlord, and he has discontinued his claim against her. Mr Officer disagreed with that, saying that as the new owners, the new landlord is responsible for any failings of the prior landlord.
Jamia agrees that the HHS certificate was wrong. But the landlord believes that otherwise, the premises would be HHS compliant when the tenants were living in the dwelling.
The tenant considers there are some gaps in the house, and there were some draughts. The tenant said he could not use the heat pumps because they were not on their premises land. Analysis
The parties agree there was an issue with the HHS certificate being for the wrong dwelling, that certificate was provided by Ms Fitzgerald at the start of the tenancy.
But whether the premises would be HHS compliant, I am not sure. The onus to establish the claim is on the tenants, and the tenants have not produced sufficient evidence to prove a breach of the HHS. But even if they did, the outcome of this claim would be no different.
If there is a breach of an HHS obligation, that would be an unlawful act, and the remedy for that is an order of exemplary damages. Exemplary damages is an order the Tribunal makes to punish a wrongdoer. Section 109 of the RTA sets out the criteria the Tribunal must consider when ordering exemplary damages. Two of those criteria would not be met.
The first criterion is that the breach was caused intentionally, and there is no evidence or argument that the breach was committed by Jamia, let alone intentionally.
The second criterion of relevance, is that it must be just to make an order. Given this was an existing tenancy taken over by Jamia, any breaches happened prior to the purchase of the dwelling, so I would not find making an order would be appropriate. There is no conduct on the party of Jamia that they should be punished for.
Again the application against Ms Fitzgerald has been discontinued.
This claim is accordingly dismissed. Claim 3 - Failure to notify a change of landlord
The tenant withdrew this claim at the hearing on 5 February 2025. Claim 4 - Exemplary damages for unlawful residential premises
The tenant’s position is that the premises were unlawful residential premises, as they were not consented. The tenant considers that if the premises are not consented, their insurance becomes void. Mr Officer states that as far as he had been aware, the house was consented. It was submitted that it was the owners responsibility to ensure the house was compliant.
The landlord states that when they purchased the premises they were not aware the premises were unlawful. Analysis
An unlawful residential premises is a rental premises that could not be lawful used for that purpose. If the premises were not consented, as both parties accept is the case, then that alone would make the premises unlawful residential premises.
However, for the same reasons mentioned above, I would not make an exemplary damages order to punish Jamia, because the breach was not intentionally committed by Jamia, nor would it be just to make an order against Jamia to punish them. When Jamia found the premises to be unconsented (with other defects like missing fire walls), Jamia acted to address that issue.
This claim is dismissed. Claim 5 – Retaliatory notice
The tenant considers that the termination notice was the result of him bringing the state of the premises to the landlord’s attention. The tenant considers they were only terminated because they stood up for themselves.
The landlord states that the process they applied, was on the advice of Tenancy Services. The landlord is firm that it was not a notice terminating the tenancy for retaliatory reasons. Again the landlord advised it was a shock to hear what was the situation with the tenancy. The termination was a result of the issues raised by the tenant, but not in retaliation. Analysis
In this case the landlord initially gave the tenants a 7-day notice terminating the tenancy on 29 July 2024, on the grounds of the premises being uninhabitable. When the tenants raised with the landlord that this notice was not appropriate, the landlord issued a replacement notice on 5 August 2024, terminating the tenancy with 90 days notice on the grounds of needing to do extensive works on the premises.
Section 54 of the Residential Tenancies Act 1986 holds that the Tribunal may declare a notice to terminate a tenancy of no effect, if that notice is retaliatory. However, if the tenant is seeking an order that notice is retaliatory, the application must be filed within 28 working days of the notice. Section 54 confirms:
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.
In this case, the tenant applied to the Tribunal on 25 September 2024, that was 42 working days after the landlord’s 7-day notice, and 36 working days after the landlords 90-day notice.
The end result is that the tenants retaliatory notice application was filed out of time, so no orders can be made on that basis. The Tribunal has no discretion to accept a late application from the tenant.
This claim is dismissed. Claim 6 – Unlawful termination notice
The tenant considers the termination notice was unlawful, because it only gave the tenant 7 days to vacate, it should have been longer.
Again the landlords state they were following the advice of Tenancy Services. Analysis
The Tribunal can make an order for exemplary damages if the landlord gives an unlawful termination notice. Section 60AA applies, which holds: 60AA Landlord acting to terminate tenancy without grounds A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
I find that this claim is not established for these reasons: a. Firstly, I am not satisfied that the landlord knew they could not give the 7 day notice as the landlord did. The evidence which the Tribunal accepts, is that when the landlord became aware of the problems with the tenancy, that they sought advice from Tenancy Services, who advised a 7-day notice should be given. It is almost certain that the landlord fairly relied on that advice, and therefore the notice was not given with the landlord knowing it could not be given. b. Secondly, if viewed on the basis of the 90 notice, I consider that notice was valid. The landlord gave notice on the basis of needing to undertake extensive work to make the premises lawful, which included building firewalls. The landlord can validly terminate a tenancy if extensive work is needed, which is the case here. c. Thirdly, I would not have ordered exemplary damages to punish the landlord, because I do not consider there is evidence to support the landlord intentionally setting about breaching their obligations under the RTA.
This claim is dismissed. LANDLORD’S CLAIM
The only claim from the landlord is for rent arrears. The landlord states that the tenant stopped paying rent. The landlord seeks rent arrears to 1 November 2024, when possession of the premises was returned by the landlord (when keys were handed over at the last tenancy). The landlord is seeking rent arrears to be paid between 28 August 2024 and 1 November 2024, which is 65 days.
The tenant said they have obtained advice, and given the 7-day termination notice was issued, they are not liable for paying rent. The tenant accepts that given subsequent events, that was not correct, and accepts that rent should have been paid. The tenant states that the rent was withheld so they could pay the next bond.
I record for completeness, that at the hearing the landlord raised an additional claim around cleaning at the end of the tenancy. Following discussion, this claim was withdrawn. Analysis
There is no dispute between the parties that the tenant stopped paying rent.
If the tenancy terminated on the basis that the premises were uninhabitable, then the rent would have abated (stopped), see section 59A. However in this case the tenant objected to a 7-day notice, and the landlord then withdrew that notice and replaced it with a 90-day notice.
The tenant is required to pay rent during a 90-day notice, and required to pay rent until possession of the premises is returned to the landlord.
Again the rent arrears claimed (and not disputed) is for 65 days. The rent was $320.00 per week, being $45.71 per day. Therefore the arrears are $2,971.15, and that is ordered.

BOND

The bond is to be released to the landlord to offset the rent arrears.

FILING FEE

Because the landlord has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $27.00

Tenancy Tribunal case 5027624 — Rent arrears at 59 Bannister Street, Masterton, Masterton 5810

At a glance

Tenancy Tribunal case 5027624 — Rent arrears at 59 Bannister Street, Masterton, Masterton 5810

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

CLAIMS TO BE DETERMINED

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

BOND

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

CLAIMS TO BE DETERMINED

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

BOND

FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions