What was Tenancy Tribunal case 5050070 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5050070?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050070?

The dispute type was not classified.

Where can I read the official tribunal order for case 5050070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11052625-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5050070 about?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 5050070?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5050070?

The dispute type was not classified.

Where can I read the official tribunal order for case 5050070?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11052625-Tenancy_Tribunal_Order.pdf.

Unit/Flat 103, 79 Halsey Street, Auckland Central, Auckland Tenancy Tribunal Case 5050070 — Tenancy dispute

Order

The tenant’s application is dismissed.

Reasons

Both parties attended the hearing by telephone.
The tenant has applied for a market rent assessment. Sections 25(1) and (3) Residential Tenancies Act 1986 (“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 the 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”.
The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.
It is also common for parties to refer to the “market rent” statistics published by Tenancy Services. The data shown is for non-government owned properties and is an indication of the non-government rental market based on the bonds lodged. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. They include median rent as well as upper and lower quartile rents.
It is for an applicant to provide the evidence necessary to substantiate the rent they believe is the appropriate market rent. If the applicant fails to do so then their application will be dismissed because it is for the applicant to provide the necessary evidence to support their claim. It is not the Tribunal’s responsibility to extract evidence, although it may extract and consider Trademe advertisements and the Tenancy Services information with the parties during the hearing. The evidence
The tenant gave evidence: a. The rent in June 2021 at the start of the tenancy was $750.00 per week. b. After a year the rent was increased to $775.00 per week. c. The next year the rent was increased to $800.00 per week. d. The landlord gave the required notice of a rent increase to $880.00 per week, effective from 7 September 2024. e. The tenant is unhappy with the increase and the lack of any information supplied by the landlord justifying the increase of 10%. f. He referred the Tribunal to a Trademe advertisement for an apartment in the same complex and of a comparable standard but including an ensuite, listed with an asking price of $850.00 per week. g. The tenant believes that a rent of $825.00 per week is a market rent that he would accept.
The landlord gave evidence: a. The rent was increased in accordance with the provisions of the RTA having carried out an assessment of the market rent based on Trademe information. b. He accepted that the one advertisement on Trademe referred to by the tenant was similar to the tenant’s apartment and was suitable for comparison. c. He referred the Tribunal to Trademe advertisements for: i. A two-bedroom, two-bathroom apartment in the same building listed at $1,075.00 per week. ii. A two-bedroom, two-bathroom apartment in the same complex listed at $1,100.00 per week. d. That Trademe provided information that the median asking price for rents for the Wynyard Quarter where the apartment is situated in September 2024 for two-bedroom, two-bathroom apartments was $1,050.00. This was based on five listings. e. The Auckland rental market is volatile. At the time the new rent was assessed in July 2024, the market was stronger and the rent increase justified. He gave evidence (which the tenant disagreed with) that the rental market is weaker towards the end of the year.
The tenant believes that the two apartments advertised on Trademe and examined during the hearing are superior to his apartment because they have elevated views over the water and one appears larger in area. He also noted that the advertisements listed asking prices and do not reveal what the apartments’ actual, negotiated rent may be.
The tenant referred to the Bonds Centre information on the Tenancy Services website which showed that from the information of 4197 bonds, two-bedroom central Auckland apartments, rent in the lower quartile was $525.00, the median rent was $595.00 and the upper quartile rent was $700.00.
The landlord noted that in his opinion central Auckland rentals encompass a wide range of properties from “shoe box” apartments to superior, fully-furnished apartments in complexes with shared gymnasiums and swimming pools such as the subject apartment. The landlord disputed that the bond information was helpful in determining the rent for such superior apartments as those advertised and referred to in the hearing. Decision
There are three questions to be determined in an application under section 25 RTA: a. What would be a market rent for the property? b. Is the proposed rent increase substantially above the market rent? c. If so, what should the rent be?
As noted during the hearing, it is for the tenant to provide evidence to persuade the Tribunal what the market rent should be. He has relied on one Trademe advertisement and the Tenancy Services bond information.
The Tribunal accepts the landlord’s submission that in the case of such a superior apartment, the Tenancy Services information is not convincing. It does not provide any information as to whether the apartment is let fully furnished, the size of the apartment or the provision of parking. It also encompasses a wider area than just the Wynyard Quarter which provides uniformly superior apartments.
The Tribunal accepts that the two apartment advertisements referred to by the landlord are for apartments which have some features superior to this apartment.
The parties agree that the advertisement referred to by the tenant was for a comparable apartment, although it included an ensuite lacking in the subject apartment. The rent being asked for that apartment is $850.00 per week. This is the only information on which the Tribunal can reasonably rely. However, one advertisement on its own is not a sufficiently robust basis for the Tribunal to make a determination of market rent.
The tenant has not therefore put before the Tribunal sufficient evidence to enable it to determine the market rent and so consider whether the new rent is substantially above the market rent. The tenant’s claim must therefore be dismissed.
If the Tribunal were to accept the evidence of one apartment advertisement as sufficient evidence, it would determine that the market rent was $840.00 per week. The difference between that rent and the current rent is $40.00 per week. The Tribunal does not accept that this represents a substantial amount above the market rent and so the tenant’s application would be dismissed on this basis as well.

Reasons

Both parties attended the hearing by telephone.

The tenant has applied for a market rent assessment. Sections 25(1) and (3) Residential Tenancies Act 1986 (“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 the 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”.

The evidence for comparable rents is usually based on advertisements for similar premises in the locality. This evidence has its limitations. Although advertisements usually list the essential features of the property advertised, there is often limited qualitative information available for comparison. Also, advertisements only cover houses currently on the market and do not necessarily reflect the overall level of rents charged for existing similar tenancies in the area.

It is also common for parties to refer to the “market rent” statistics published by Tenancy Services. The data shown is for non-government owned properties and is an indication of the non-government rental market based on the bonds lodged. These statistics cover the rents charged for tenancies where bonds have been lodged over the preceding 6 months. They include median rent as well as upper and lower quartile rents.

It is for an applicant to provide the evidence necessary to substantiate the rent they believe is the appropriate market rent. If the applicant fails to do so then their application will be dismissed because it is for the applicant to provide the necessary evidence to support their claim. It is not the Tribunal’s responsibility to extract evidence, although it may extract and consider Trademe advertisements and the Tenancy Services information with the parties during the hearing. The evidence

The tenant gave evidence: a. The rent in June 2021 at the start of the tenancy was $750.00 per week. b. After a year the rent was increased to $775.00 per week. c. The next year the rent was increased to $800.00 per week. d. The landlord gave the required notice of a rent increase to $880.00 per week, effective from 7 September 2024. e. The tenant is unhappy with the increase and the lack of any information supplied by the landlord justifying the increase of 10%. f. He referred the Tribunal to a Trademe advertisement for an apartment in the same complex and of a comparable standard but including an ensuite, listed with an asking price of $850.00 per week. g. The tenant believes that a rent of $825.00 per week is a market rent that he would accept.

The landlord gave evidence: a. The rent was increased in accordance with the provisions of the RTA having carried out an assessment of the market rent based on Trademe information. b. He accepted that the one advertisement on Trademe referred to by the tenant was similar to the tenant’s apartment and was suitable for comparison. c. He referred the Tribunal to Trademe advertisements for: i. A two-bedroom, two-bathroom apartment in the same building listed at $1,075.00 per week. ii. A two-bedroom, two-bathroom apartment in the same complex listed at $1,100.00 per week. d. That Trademe provided information that the median asking price for rents for the Wynyard Quarter where the apartment is situated in September 2024 for two-bedroom, two-bathroom apartments was $1,050.00. This was based on five listings. e. The Auckland rental market is volatile. At the time the new rent was assessed in July 2024, the market was stronger and the rent increase justified. He gave evidence (which the tenant disagreed with) that the rental market is weaker towards the end of the year.

The tenant believes that the two apartments advertised on Trademe and examined during the hearing are superior to his apartment because they have elevated views over the water and one appears larger in area. He also noted that the advertisements listed asking prices and do not reveal what the apartments’ actual, negotiated rent may be.

The tenant referred to the Bonds Centre information on the Tenancy Services website which showed that from the information of 4197 bonds, two-bedroom central Auckland apartments, rent in the lower quartile was $525.00, the median rent was $595.00 and the upper quartile rent was $700.00.

The landlord noted that in his opinion central Auckland rentals encompass a wide range of properties from “shoe box” apartments to superior, fully-furnished apartments in complexes with shared gymnasiums and swimming pools such as the subject apartment. The landlord disputed that the bond information was helpful in determining the rent for such superior apartments as those advertised and referred to in the hearing. Decision

There are three questions to be determined in an application under section 25 RTA: a. What would be a market rent for the property? b. Is the proposed rent increase substantially above the market rent? c. If so, what should the rent be?

As noted during the hearing, it is for the tenant to provide evidence to persuade the Tribunal what the market rent should be. He has relied on one Trademe advertisement and the Tenancy Services bond information.

The Tribunal accepts the landlord’s submission that in the case of such a superior apartment, the Tenancy Services information is not convincing. It does not provide any information as to whether the apartment is let fully furnished, the size of the apartment or the provision of parking. It also encompasses a wider area than just the Wynyard Quarter which provides uniformly superior apartments.

The Tribunal accepts that the two apartment advertisements referred to by the landlord are for apartments which have some features superior to this apartment.

The parties agree that the advertisement referred to by the tenant was for a comparable apartment, although it included an ensuite lacking in the subject apartment. The rent being asked for that apartment is $850.00 per week. This is the only information on which the Tribunal can reasonably rely. However, one advertisement on its own is not a sufficiently robust basis for the Tribunal to make a determination of market rent.

The tenant has not therefore put before the Tribunal sufficient evidence to enable it to determine the market rent and so consider whether the new rent is substantially above the market rent. The tenant’s claim must therefore be dismissed.

If the Tribunal were to accept the evidence of one apartment advertisement as sufficient evidence, it would determine that the market rent was $840.00 per week. The difference between that rent and the current rent is $40.00 per week. The Tribunal does not accept that this represents a substantial amount above the market rent and so the tenant’s application would be dismissed on this basis as well.

Tenancy Tribunal case 5050070 — Tenancy dispute at Unit/Flat 103, 79 Halsey Street, Auckland Central, Auckland

At a glance

Claims & awards

Tenancy Tribunal case 5050070 — Tenancy dispute at Unit/Flat 103, 79 Halsey Street, Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions