Published tribunal order
Tenancy Tribunal case 5102090 — Tenancy dispute
Decided 31 Mar 2025 · Published 31 Mar 2025 · Application 5102090
- Exemplary damages
- 14-day notice
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
- [The landlord/s] to pay [The tenant/s] the sum of $1,632.14 immediately.
- The rent for the property is $710.00 per week inclusive of water.
- The landlord cannot increase the rent for the remainder of the fixed term.
Reasons
- Both parties attended the hearing held on the 18 February 2025.
- The tenant has lived at the address since 12 January 2021 with her four young children. From January 2021 to May 2021 the tenant and her partner were the tenants (the first tenancy agreement) when their relationship ended the tenant signed a new tenancy agreement with the landlord.
- The tenancy agreement was for a fixed term period beginning on the 29 May 2021 and ending on the 12 January 2026. (The second tenancy agreement)
- The landlord and the tenant have enjoyed a relatively harmonious relationship with one another. They both refer to each other as “nice” in correspondence. The tenant was a first-time tenant who had come from transitional housing and wanted to prove herself to be a good tenant 1 and the landlord was a first-time landlord.
- Disputes arose in the middle of 2024, after the landlord issued a rent increase notice which was due to take effect on the 4 June 2024. The tenant took advice and believed that the landlord was not permitted to increase the rent. The tenant issued a 14-day notice on the 21 July. The following day the landlord applied to the Tribunal to terminate the fixed term tenancy on the basis that it was uneconomic for the landlord to continue with the tenancy. The tenant was happy to have the Tribunal determine the disputed issues, and therefore waited for the hearing that was set down for October. On the 18 September the landlord withdrew their claims in the Tribunal.
- After the landlord withdrew her claims in the Tribunal the landlord then proposed a settlement with the tenant.
- The parties agreed to resolve (settle) all their disputes by noting that the rent would drop to $720 per week and the tenant would have possession of the back shed/ garage as part of her tenancy (this usually was part of the other dwelling’s tenancy). The tenant also agreed that she would forgo her claims in respect of the other rent increases over the tenancy. The parties signed a tenancy agreement which documented these agreements on the 6 November 2024 (the third tenancy agreement).
- Only 3 weeks after settlement, the landlord told the tenant she needed the garage/shed back as it was difficult to rent out the back house without the shed. The tenant had to move all the items out of the garage/ shed back into her home.
- The tenant then filed these claims on the 9 December 2024.
- The tenant claims: a. That the landlord has breached s24(1)(g) RTA by increasing the rent during the fixed term tenancy. The tenant seeks the amount she has paid in increased rent back from the landlord. b. That the landlord has charged her water at $30.00 from the date of the first tenancy agreement to the 7 February 2022 and has not accounted to her for the water she has paid. This means she has paid more than what she used. c. That the landed has failed to provide gas bottles for the stove- s39 RTA d. That the landlord has acted in a retaliatory manner by issuing proceedings a day after receiving the 14 day notice. 1 It was acknowledged by the landlord that the tenant had been a good tenant throughout the tenancy, who had paid rent on time and kept the property in a good condition.
- The tenant claims compensation and exemplary damages (where appropriate) for these claims. The rent.
- The landlord is unable to increase the rent in a fixed term tenancy agreement unless the fixed term agreement specifically allows them too. (see 24(1)(g) RTA). The fixed term agreement dated 29 May 2021 did not specify that the landlord was allowed to increase the rent.
- The landlord increased the rent from $640.00 plus water of $30 per week to $685.00 on the 7 February 2022 by notice on the December 2021.
- The landlord further increased the rent to $710 on the 5 June 2023 by notice given April 2023.
- The landlord again increased the rent to $740.00 per week on the 4 June 2024 by notice given to the tenant on the April 2024.
- The landlord says that they did not know that they were unable to increase the rent during the fixed term period. The landlord says that she was a first time landlord and did not take any advice before entering into the tenancy agreement.
- The landlord submits that in any case the tenant agreed to pay the rent and only challenged the rent notices in 2024.
- The tenant says that she never agreed to pay the rent, and she paid believing that she was required to pay the increased by notices given, it was not until she queried the last increase (4 June 2024) that she realised that she was not required to have paid any of the increased rent. The tenant further says that she has been in transitional housing for some time before this tenancy, the purpose of the fixed term was to prove to future landlords that she was a good tenant who paid rent on time and kept the property to a good standard. The tenant said she was very reluctant to challenge the landlord, especially early on in the tenancy.
- Section 11 of the RTA provides: Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
- Section 24 of the RTA sets out when rent increases can take effect. Putting aside the requirement that rent cannot be increase during a fixed term tenancy agreement unless the agreement allows it, (which this one did not), then rent increases can only take place 12 months from the commencement of the tenancy (in this case the 29 May 2021) and only once every 12 months. 2
- The rent increase dated 7 February 2022 was not 12 months after the date of commencement 3 The rent increase of 4 June 2024 was not 12 months (it was short by a day) after the last increase.
- Therefore, there are three problems with the rent increases where they are inconsistent with the provisions of the RTA (section 24). a. The fixed term tenancy agreement did not allow them. b. The first one was less than 12 months after the tenancy commenced. c. The third rent increase 4 June 2024 was less than 12 months after the last increase.
- I am satisfied that rent increases were a breach of s24, and that the tenant’s payment of them could not be seen as agreement because it was inconsistent with the provisions of the Act.
- The landlord argues that even if I found that they are inconsistent with the provisions of the RTA that I should allow them, as the tenant has paid them, and the landlord only asked for rent increases to meet her mortgage commitments and outgoings. The landlord says that the increase in interest costs, insurance and rates was unsustainable and not expected at the time that the fixed term tenancy was entered into. The landlord says that she would have faced financial ruin or be forced to sell the property if she was unable to increase the rent over this time. 4
- Section 85 of the RTA requires the Tribunal to determine matters in a way that is fair and expeditious to the parties taking into account the legal principles and the substantial merits and justice of the case.
- Therefore, despite finding that that the rental increases were not permitted I have determined: 2 See sections 24(1)(d) and (e) RTA. 3 The parties signed a new tenancy agreement when the tenant’s partner left the tenancy. I consider that the commencement date is as recorded in that tenancy agreement which is the 29 May 2021. 4 It is noted that apart from the landlord’s assertions she did not provide any documents that supported this proposition. a. The rent increase of 7 February 2022 should not be permitted. Therefore, the rent should be $670.00 inclusive of water from the 7 February 2022 not $685 inclusive of water. b. That the rent increase of 5 June 2023 to $710.00 per week should be permitted. c. That the rent increase of 4 June 2024 was not permitted.
- In making the above determination I have considered the financial situation of both parties, the understanding of the tenancy obligations, that the tenant received the accommodation supplement for the increased rent on 5 June 2023 and the likely market rental of the property at this time. I consider that an award like this means that the tenant was paying a fair rent, and it does not represent a financial windfall to either party.
- I comment that I have placed little weight on the landlord’s submissions that she did not understand her legal obligations. Being landlord is a commercial enterprise and ignorance of the law is no excuse for noncompliance. It is incumbent for landlord like any owner of a business or of an investment to take legal advice before entering into any agreement. The LPG cylinder.
- The stove top in the house is gas. The tenant says that the gas connection is for a 45kg cylinder. The tenant says that the cylinder did not come with the house and that she has had to use a 9kg gas bottle to fuel the stove. This means that the stove does not work properly.
- The landlord says she has had the gas checked before the tenancy began and that there were no issues with using a 9 kg bottle. The landlord says she provided a 9 kg bottle and provided a photograph of the side of the house showing the gas bottle taken shortly before the tenancy began.
- The landlord also says that in February 2022 after the tenant complained that she did not think that the gas stove was working, she had a gas fitter go to the property and check the property. She said that there were no problems. She said although she told the tenant that the tenant could get a bigger tank, she says this was because it would make more efficient. There was no actual problem with the tenant using the 9kg bottle.
- The tenant confirmed back in writing that the stove was working.
- Section 39 RTA covers the provision of utilities (gas, water electricity). It provides that the landlord is responsible for the provision of the service and the tenant is responsible for gas that the tenant uses.
- I am satisfied that the landlord fulfilled her obligations by providing the 9kg gas cylinder. I find it more likely than not that the original gas bottle was the landlord’s gas bottle because of the landlord’s evidence that they did the inspection before ethe tenant moved in and the gas was checked as demonstrated in the tenancy agreement inspection report (which noted on hob not working) I accept that the landlord’s evidence that she only suggested the bigger cylinder because it would have made it more efficient for the tenant. The tenant provided no evidence that the 9kg gas bottle could not be used.
- The tenant’s claim in respect of the gas bottle has not been proven and is dismissed. Despite that, I urge both parties to get a gas fitter back to the property to confirm whether the tenant should be using a 9kg bottle and if there is any safety risk by doing so. Water
- Is the tenant entitled to a full refund of the water paid from 29 May 2021 to 7 February 2022, when the rent was recorded as $640 per week plus water?
- A tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA).
- The tenant says that she would not have used $30.00 per week for water from the date of the commencement of the first tenancy agreement 12 January to the date of the first rent increase 7 February 2022. The tenant says she has been overcharged for water.
- The tenant has not requested the water invoices for this time, neither have they been provided. The landlord says that the rent was only recorded as $640 for rent and $30 for water because this would allow the tenant to only pay a bond of $2560 rather than 2680.00 (The landlord says that the tenant was short by this amount at the beginning of the tenancy- this was denied by the tenant).
- Having heard all the evidence, I consider it more than likely that the parties intended for the water to be included in the rent and therefore the rent was $670.00 per week. Even if I am wrong, I have no way of calculating what the amounts that were used by the tenant was. I accept that it is likely that the tenant dd not use that much water, but without the water invoices I am unable to calculate the exact amount the tenant would have been liable for. I do not consider that the amount of $30 per week for water for a family of 5 to be excessive and I consider that both parties looked at the total of rent and water when determining whether they would enter into the agreement. The effect of the settlement agreement- The third tenancy agreement.
What is the effect of the tenancy agreement signed on the 6 November 2024?
- I refer to paragraphs 5-8 above.
- I am satisfied that the landlord repudiated the third tenancy agreement by not providing part of the premises, the shed to the tenant from the 9 December.
- As I have found that the last increase of the 4 June 2024 was not permitted, and that the landlord repudiated the tenancy agreement entered into as full settlement of the disputes, I am satisfied that it is in the interests of justice that the settlement – the third tenancy agreement be set aside in full. This reverts the parties to the position that they would have been in had the agreement not been signed. I do not consider it fair that the landlord can rely on only the parts of the settlement agreement that suit her purpose but not the others. Was the Landlord’s claim to the Tribunal retaliatory?
- The tenant has claimed that the landlord filed proceedings in the Tribunal in retaliation of her attempts to resolve the rent increase and gas cylinder issues.
- The tenant filed proceedings on the 22 July 2024 a day after receiving the tenant’s 14-day notice. In the application she asked the Tribunal saying in her application: “I have to apply for termination of the fixed-term due to facing severe hardship to continue the tenancy.”
- On the 18 September, 2 weeks before the hearing the landlord withdrew her application. It is notable that at this stage the dispute had not been resolved by the parties. The landlord says that she needed to withdraw the claim because of her own personal family situation, which meant that she was unable to attend the hearing. This is in keeping with what she advised the Tribunal at the time as well.
- The tenant says that she believed that the landlord’s actions were retaliatory and designed to threaten her, the implicit threat being that if the tenant complained or took steps to enforce her legal rights then she may face termination of her tenancy.
- Section 54 of the RTA deals with notices to terminate a tenancy given in retaliation. However, the problem is that that the landlord did not give the tenant a notice to terminate rather the landlord made an application to the Tribunal. Section 54 does not cover such applications. There is no corresponding section in the RTA that deems an application to the Tribunal by a landlord to terminate a tenancy as being able to be retaliatory and of no effect if it was in response to the tenant’s assertion of their legal rights.
- S60AA RTA provides that it is an unlawful act if the landlord seeks to terminate a tenancy (including making an application to the Tribunal) knowing that they are not entitled to do so. I do not consider that the landlord breached s60AA because the landlord was asking the Tribunal to effectively reduce the fixed term tenancy on the basis that there was unforeseen circumstance ( which I assume the landlord would argue is the significant rise in the cost of her mortgage, rates and insurance coupled with the fact that she had not understood that she could not increase the rent over the fixed term tenancy) I make no determination on whether the landlord should be entitled to a reduction of the fixed term tenancy as I am not required to; but I am satisfied that on the face of it the claim is one that the landlord is entitled to make and therefore there is no breach of s60AA.
- This leaves me in the position where, whilst I am extremely uncomfortable with the way the landlord conducted herself, and I am in no doubt that the application to the Tribunal and the subsequent withdrawal by the applicant was designed and intended by the landlord to assert power and control over the tenant, there is no breach of the RTA.
- Making an application to the Tribunal is the appropriate way for tenants and landlords to resolve disputes between them that they are unable to resolve themselves. The tribunal has the power if it considers that a claim is made vexatiously or is an abuse of process to make an award of costs against the party. Had the adjudicator been aware of the history of the claim and the dispute between the parties, he may well have considered making such an order. It is not for me to determine whether the claim was vexatious or an abuse of power as I was not the Adjudicator hearing that matter. Conclusions.
- I have made a decision that the landlord was only entitled to charge rent at $670 per week from 7 February 2022 to 4 June 2023, and the landlord was only entitled to charge rent at $710 from 4 June 2023 to today. I have been able to calculate the amount owed to the tenant up to today as $1,632.14.
- Rent overpaid from 7/2/22 to 4/6/23 @$15.00 per week = $1035.00 Rent overpaid from 4/6/24 to 6/11/24 @$30 per week = $445.71 Rent overpaid from 7/11/24 to 20/2/25 @$10 per week =$151.43
- The current rent will revert to $710.00 and the landlord is unable to increase the rent over the remainder of the fixed tenancy.
- The tenant indicated today that she wished the tenancy to revert to a periodic tenancy, so she can leave the tenancy by giving notice. 5 The landlord indicated that they would consider a proposal to change to a periodic tenancy. Both parties will need to agree in writing to vary the tenancy to a periodic tenancy if that is what they require. Filing fee and name suppression.
- As the tenancy has been mostly successful in her rent claim I award the tenant name suppression. 5 I understand that this may change as a result of this decision.
- I also grant the landlord name suppression because she has been successful in defending the tenant’s claims in respect of the gas cylinder and the retaliatory notice.