What was Tenancy Tribunal case 5080552 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5080552?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5080552?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5080552?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11212613-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5080552 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5080552?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5080552?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5080552?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11212613-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5080552 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and tenants’ names and identifying particulars.
The Tribunal declares that the rent for the premises is not a market rent and fixes the rent at $500.00 per week, to apply from 3 December 2024.
The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 11:59pm, Friday 10 January 2025.
The tenant’s cross-application seeking exemplary damages for retaliatory notice is dismissed.
[The tenant/s] must pay rent until the end of the tenancy and must pay [The landlord/s] $2,028.56 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
The tenant filed a cross-application seeking an order that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount. The tenant also sought exemplary damages for retaliatory notice.

THE TENANCY

The parties entered into a 12-month fixed-term tenancy which commenced on 19 August 2023. The fixed-term came to an end on 17 August 2024, after which it rolled over into a periodic tenancy.
Throughout the fixed-term tenancy the rent was $600 per week. There have been no increases in weekly rent since the fixed-term tenancy rolled over.
The premises is one of two self-contained units inside a standalone bungalow on a property in Dairy Flat. It was advertised as, and the landlord asserts is, a two-bedroom unit with a kitchen, living room, bathroom and laundry.
The tenant takes issue with the size of the second bedroom. The tenant says it does not meet the requirements of a bedroom, 1 and therefore the rent should be reduced to the market rent of a one-bedroom unit in the same area.

RELEVANT LEGAL PRINCIPLES

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: 1 With reference to reg 11 of Housing Improvement Regulations 1947 and the amount of natural light admitted into the room. ... [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.

THE ISSUES

Both the tenant and landlord have made applications seeking orders from the Tribunal.
To work through the claims raised by both parties, I will address each of the following issues in order: a. Did the landlord give retaliatory notice terminating the tenancy? b. Does the premises have two legal bedrooms? c. Based on my findings under (b), does the rent payable or to become payable for the premises exceed market rent for a similar property by a substantial amount? d. Based on my findings under (c), is the tenant in rent arrears? e. Based on my findings under (d), should the tenancy be terminated under s55(1)(a)?

Did the landlord give retaliatory notice terminating the tenancy?

The relevant provision of the RTA is section 54: 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.
The tenant alleges that, in applying to the Tribunal for an order terminating the tenancy, the landlord was retaliating to the tenant raising issues regarding the second bedroom.
An application to the Tribunal seeking an order for termination is not the same as issuing a notice terminating the tenancy. In the former, a landlord asks the Tribunal to issue an order terminating the tenancy on some date in the future (or immediately), in the latter, a landlord is themselves issuing a notice under s 51 of the RTA in which they state the date the tenancy will terminate.
In this case, the landlord has not issued a notice terminating the tenancy under s 51, therefore no retaliatory notice was given. The landlord was simply exercising their right to apply to the Tribunal.
I dismiss the tenant’s claim seeking exemplary damages for retaliatory notice.

Does the premises have two bedrooms?

The tenant submits the premises does not have two lawful bedrooms. The tenant referred to the Housing Improvement Regulations 1947 (the Regulations).
The premises was let as a two-bedroom unit and the landlord asserts it is a lawful two-bedroom unit.
The Regulations prescribe the standards of fitness with which every house to which the regulation apply must comply. 2 A list of premises in respect of which the Regulations do not apply is found at reg 3(1).
The tenant relies on reg 11 of the Regulations, which states: (1)Every habitable room shall be provided with 1 or more windows so situated in an external wall or external walls that adequate light is admitted. (2)The aggregate area of the glass of the windows of each habitable room shall be not less than a one-tenth part of the area of the floor of the room.
The Regulations defines “habitable room” as any room which is used or intended to be used, or, in the opinion of the local authority, is capable of being used, as a living room, dining room, sitting room, or bedroom. 3
The tenant states the second bedroom in the premises has a floor area of
425m 2 (being 2.7m x 2.75m). The room has an external door, alongside which are the only windowpanes in the room. The tenant stated the two separate windowpanes each have an area of 0.312m 2 (being 1.2m x 0.26m) for the top panel and 0.156m 2 (being 0.26m x 0.60m) for the bottom panel.
Therefore, the tenant says the total area of glass in the windows of the room is
468m 2 . The tenant says the glass in the windows equates to 6.3% of the total floor area of the room, and therefore is not compliant with reg 11(2).
The landlord did not challenge the tenant’s evidence relating to the measurements of the floor area or two windowpanes. In the absence of any challenges to that evidence, I accept the tenant’s measurements are accurate.
I am satisfied the tenant has proven the second bedroom does not meet the requirements of reg 11 of the Regulations and is not a lawful bedroom. 2 Reg 4. 3 Reg 2.
I therefore find the premises is a one-bedroom unit. Does the rent payable or to become payable for the premises exceed market rent for a similar property by a substantial amount?
The relevant provision of the RTA is section 25: Market rent (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. (2)Notwithstanding anything in subsection (1), no application may be made under that subsection in respect of the rent payable under a fixed-term tenancy later than 3 months after— (a)the date of the commencement of the tenancy or (in the case of a tenancy that was subsisting immediately before commencement of this Act) the date of the commencement of this Act; or (b)the date of the last review of rent,— whichever is the later. [...] (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. (4)An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date, but being no earlier than the date of the application for the order and no later than 30 days after the date of the order
The fixed-term tenancy commenced on 19 August 2023 and expired on 17 August 2024. The tenancy rolled over into a periodic tenancy on that date. The rent remained $600.00 per week throughout the tenancy.
The tenant filed a cross-application seeking an order as to market rent on 3 December 2024.
Pursuant to 25(2)(a), the tenant is barred from seeking a review of the rent paid under the fixed-term tenancy. In addition, any order, if made, must comply with s25(4) which states that any order made can take effect no earlier than the date of the application.
Essentially, the tenant’s application is confined to the rent payable since 3 December 2024.
As stated in s54(1), the Tribunal may order reducing the rent to an amount in line with market rent if the rent for the tenancy exceeds the market rent by a substantial amount. ‘Market rent’ is the rent that a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay, taking into consideration the general level of rents for comparable tenancies or comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The questions I must determine are firstly what a market rate of rent would be for these premises, secondly, whether the rent payable is substantially above the market rate, and if so, thirdly, what the rent should be?
I record at this juncture, that I was not presented with any direct independent valuation in relation to these premises specifically, but the RTA does not require such evidence with market rent claims. What I do have is evidence provided from the Tenancy Services Bond data, and also Trademe and other similar real estate listings.
Tenancy Services operate the Tenancy Bond Centre. As part of its operation, the Bond Centre records data around the rent paid when the bond is lodged, and this information is collated and published. This can be found at https://www.tenancy.govt.nz/rent-bond-and-bills/market-rent.
The bond data is aggregated into suburbs, in this case the relevant suburb is Dairy Flat, Auckland. The tenant provided with the market rent report based on 387 bonds lodged with the Bond Centre between 1 Apr 2024 and 30 Sep 2024.
The bond data is separated into the size of the dwelling based on bedroom size. The bond data for Dairy Flat does not record any bonds received for 1 bedroom premises.
For 2-bedroom houses the Bond Centre received 84 bonds over the relevant period, and from that the rents are as follows: Lower quartile $510.00 Median$580.00 Upper quartile$615.00
What this means, is that the average rental for the lowest 25% of rents is $510 per week, and for the highest 25% of rents it is $615.00 per week.
As there is no data held for one-bedroom properties in Dairy Flat, the tenant referred me to the Bond Centre data for the same time period for Albany Heights, which she submitted was the closest comparable location. However, the Bond Centre does not have data for one-bedroom houses (or any other type of premises) for Albany Heights.
The tenant then referred to the Bond Centre data for Albany, which for 1- bedroom houses in Albany for the relevant period, the Bond Centre received 42 bonds, and from that the rents are as follows: Lower quartile $495.00 Median$508.00 Upper quartile$517.00
The tenant also produced screenshots of real estate listings from nearby properties. In particular, the tenant relied on a listing from the same suburb, a listing at 1583 Dairy Flat Road for $500 per week, which was advertised as a one-bedroom dwelling. The screenshot only provides one photograph of the kitchen/living area of that dwelling. The tenant stated it was located 5 minutes’ drive from her current tenancy. The tenant also stated she viewed the property and, in her opinion, was in better condition than her current tenancy.
The tenant stated she had viewed the property at 1583 Dairy Flat Road and stated it was one bedroom house with a separate studio (one room) that was in the garden.
The tenant also provided screenshots of other one-bedroom listings but none were located in Dairy Flat. They were located in other suburbs such as Kumeu, Kaukapakapa, Silverdale and Albany and ranged in rent from $405 per week, to $490 per week.
In response, the landlord says the rent of $600 per week is market rent. The landlord stated that, in 2023, rentals in the area were at an all-time high. He says from May or June of this year, the market rent has decreased very quickly and that is why the tenant now requests a lower rent. The landlord says the property is in Dairy Flat, but is very close to Albany which makes it a desirable property.
In response to the tenant’s evidence regarding 1583 Dairy Flat Road, the landlord says it is located 10 kms from the tenant’s premises.
The property manager stated the landlord is clear that they consider $600.00 per week a fair rent for the property.
I find the market rent for a one-bedroom unit in Dairy Flat is $500.00 per week. I do not rely on the Bond Centre data, as no data is available for a one-bedroom unit in Dairy Flat. I also note that the time-period of the Bond Centre data provided by the tenant is out-of-date. Putting that evidence to one side, I am satisfied that the property at 1583 Dairy Flat Road is comparable in that it is a one-bedroom unit with an additional studio space. I take into consideration that 1583 Dairy Flat Road may be in better condition than the tenant’s premises, but I also accept that it is located further from a town centre.
Having determined that the market rent for these furnished premises should be $500.00, the question then becomes whether the rent charged is rent exceeding the market rent by a substantial amount, and in answer to that question I find it is.
The RTA does not define what is meant by a “substantial amount” but I find the difference between the rent charged ($600.00) and the market rent ($500.00) is a substantial difference based on a plain English understanding of the word ‘substantial’.
I therefore fix the market rent for this property at $500.00.

Is the tenant in rent arrears?

The landlord has produced records based on the rent as recorded in the tenancy agreement. The tenant confirmed she does not take issue with the landlord’s calculations, and accepts that she has missed payments, but, as traversed above, she seeks an order that she has paid rent in excess of the market rent, and seeks compensation of that.
The landlord produced the below summary of rent arrears:
The above is based upon rent being charged at $600.00 per week.
Having found that the market rent for this property should be $500.00 per week from 3 December 2024, the arrears to the date of hearing must be re-calculated as below: Rent from – toBased on weekly rent Amount dueAmount paidArrears 23/11/24 – 29/11/24$600.00$600.00$0.00$3,600.00 30/11/24 – 02/12/24$600.00$257.14$0.00$3,857.14 03/12/24 – 06/12/24$500.00$285.71$0.00$4,142.85 07/12/24 – 10/12/24$500.00$285.71$0.00$4,428.56
As at 10 December 2024, the tenant was in arrears totalling $4,428.56. Should the tenancy be terminated under s55(1)(a)
As at the date of the landlord’s application, the rent was more than 21 days in arrears. I must therefore order termination.
The landlord seeks refund of the bond, and I order refund of the bond in partial payment of the rent arrears.
Given the time of year, I do not consider it is in the interests of either party to order that the tenancy terminate immediately. The tenancy will terminate at 11:59pm, Friday 10 January 2025.
The tenant must pay rent, at a rate of $500.00 per week, until the end of the tenancy.

SUPPRESSION

Both parties sought orders for suppression.
Pursuant to s95A of the RTA, the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Given both parties have partially succeeded in their claims, I make an order for suppression of both parties’ names and identifying particulars.

FILING FEE

Given both parties have partially succeeded with their claims, neither party is entitled to reimbursement of the filing fees paid.

Tenancy Tribunal case 5080552 — Rent arrears

Tenancy Tribunal case 5080552 — Rent arrears

Order

Reasons

THE TENANCY

RELEVANT LEGAL PRINCIPLES

THE ISSUES

Did the landlord give retaliatory notice terminating the tenancy?

Does the premises have two bedrooms?

Is the tenant in rent arrears?

SUPPRESSION

FILING FEE

Order

Reasons

THE TENANCY

RELEVANT LEGAL PRINCIPLES

THE ISSUES

Did the landlord give retaliatory notice terminating the tenancy?

Does the premises have two bedrooms?

Is the tenant in rent arrears?

SUPPRESSION

FILING FEE