Published tribunal order
Tenancy Tribunal case 5168213 — Cleanliness at 24 Glasgow Crescent, Kaiti, Gisborne 4010
Decided 4 Apr 2025 · Published 4 Apr 2025 · Application 5168213
- Cleanliness
- Exemplary damages
Order
- The landlord’s name is amended to Co-Lab PM Limited, to reflect the landlord’s legal name in the order.
- Co-Lab PM Limited is to pay [The tenant/s] $277.00 immediately, calculated as shown in the table below: DescriptionTenantLandlord Exemplary damages – fail to notify tenant pursuant to s.15 RTA $250.00 Filing fee$27.00 Total award$277.00 Total net payable by Landlord to Tenant$277.00
- All other claims are dismissed.
Reasons
- Mr Kahukoti, the tenant, and Mr Harrison and Ms Donaldson, representing the landlord, all attended the hearing.
- At the start of the hearing, Mr Harrison said the landlord’s name in the application was incorrect and should read “Co-Lab PM Limited”, which is the landlord’s legal name. The tenant did not dispute this.
- Mr Kahukoti has applied for retaliatory notice, landlord rent breach, breach of the tenancy agreement and unlawful entry. At the start of the hearing, the tenant amended his claim to add a claim for exemplary damages. Retaliatory Notice
- On 28 January 2025, the landlord gave the tenant a notice ending the tenancy on 30 April 2025. There was an earlier termination notice issued to the tenant dated 20 December 2024, which was later revoked on 14 January 2025 by the landlord, due to an error in the notice. The tenant claims both notices are retaliatory.
- Subsection 54(3) Residential Tenancies Act 1986 (“RTA”) provides that if the tenant makes the application for retaliatory notice within 28 working days after receiving the termination notice, the tenant may at the same time apply for an order declaring the notice to be of no effect. The tenant sought a declaration that the termination notice dated 28 January 2025 was invalid and of no effect.
- The termination notice was dated 28 January 2025. The tenant’s application was filed on 11 March 2025, which I calculate is 29 working days after the tenant received the termination notice by email on 28 January 2025. Thus, the tenant has filed his application 1 day outside the 28 working days’ time limit in subsection 54(3) RTA.
- The 28 working days period for filing an application claiming retaliatory notice is mandatory. This was made clear by the District Court in Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081: “In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.”
- When asked about not complying with the 28 working day period in section 54(3) RTA, the tenant said that he is new to tenancy law and filed his application when he could. There was no evidence provided about the tenant’s application being filed late due to circumstances beyond his control. As the District Court has confirmed the 28 working days’ time limit for filing a claim for retaliatory notice is to be strictly interpreted as per Realty House Whakatane Ltd, as above, I find the Tribunal does not have jurisdiction to hear the tenant’s application that the termination notice is of a retaliatory nature.
- In the event that I am wrong about the tenant’s retaliatory notice claim being filed outside of time, I now turn to deal with the tenant’s substantive claim that the termination notice was retaliatory, in the alternative.
- Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence. The Law
- For a notice to be declared retaliatory, the tenant must 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. See section 54(1) Residential Tenancies Act 1986 (“RTA”).
- The onus is on Mr Kahukoti to satisfy the Tribunal that it is more likely than not that the landlord was wholly or partly motivated in giving the termination notice by his seeking to exercise a right. The link must be direct. Once he has established a link, the onus shifts to the landlord to prove that the notice was not retaliatory.
- Often there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, as in this case, it may lead to a reasonable inference that the landlord was at least partly motivated by the tenant exercising his right under the Tenancy Agreement or the Residential Tenancies Act 1986. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
- 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 section 54(2), (3) and Schedule 1A RTA. I note here that the tenant has not claimed any exemplary damages.
- For a notice to be declared retaliatory, there are four issues to consider: a. Is the termination notice a valid notice that complies with section 51 RTA? b. Has the application been made in time (within 28 days of service of the notice)? c. The onus is then on the tenant to establish that the landlord was wholly or partly motivated in giving the termination notice by the tenant exercising his rights; and d. Where the tenant has raised issues prior to service of the termination 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 establish that they were not so motivated. Background
- The tenant said his tenancy began in 2021 and the property recently sold to a new owner, with settlement on 15 November 2024. He indicated he had a phone call on 13 November 2025 from Mr Harrison, the new property manager, telling him the property had been sold and that the new owners wished to continue his tenancy. The tenant confirmed he had also been told by the sale agent at the time of sale that the new owners wanted his tenancy to continue. Mr Kahukoti said he received an email on 15 November 2024 from the landlord’s staff asking him to click on a link to submit his online details for them to create a tenancy agreement for his property. The email went on to ask for his emergency contact and vehicle information. He explained that the email made him believe the landlord was asking him to enter into a new tenancy agreement, given the new landlord. He then received a copy of a letter dated 20 November 2024 from the landlord for him to take to WINZ confirming his tenancy, which indicated the rent was $650.00. He emailed the landlord on 3 December 2024 pointing out the amount of rent in the letter to WINZ was incorrect as his current rent was $600.00. The landlord responded on 4 December 2024 that the rent issue had been “clarified” and would stay at $600.00 per week.
- Mr Kahukoti said the landlord made several attempts to have him sign what he believed was a new tenancy agreement, which made him feel pressured. He also indicated he took issue with what he believed was the landlord trying to increase his weekly rent from $600.00 to $650.00/week. The tenant was concerned that if he entered into a new tenancy agreement with the landlord (the new owners and the new property managers), they might take this opportunity to increase his rent. He based this on the landlord’s letter to WINZ written on his behalf, which indicated his rent was $650.00/week. The tenant said he also highlighted to the landlord that, he had already had a rent increase on 4 October 2024 with the previous landlord, and that this new landlord could not again increase his rent within a 12-month period.
- When Mr Kahukoti received the first termination notice by email on 20 December 2024 saying the landlord wanted him to vacate the property due to extensive renovations, he explained that he and his family had a very uncomfortable Christmas shortly after this, worrying about having to leave their home. After the holidays, he contacted the landlord to point out they had referred to the incorrect section of the RTA in their termination notice, and asked for a meeting to discuss his concerns.
- The tenant and property manager met together on 13 January 2025. On 14 January 2025, the property manager emailed the tenant to confirm the incorrect section of the RTA had been referred to in the termination notice of 20 December 2024 and to confirm that notice was revoked. In the email of 14 January 2025, the property manager said he was to speak further with the new owners and that they were looking into potentially managing some of the proposed work while the tenant was there. The property manager said he would get back to the tenant about this the following week.
- The tenant said he did not hear back from the property manager until he next received the second termination notice by email on 28 January 2025, two weeks later.
- The tenant believed that, in him making an issue of not wanting to enter into a new tenancy agreement and raising the issue of a rent increase not being permitted, which he said was him exercising his rights as a tenant, the landlord decided to terminate his tenancy and issued the notices to terminate the tenancy as such, in retaliation for him exercising these rights.
- The landlord, in response, said that they had taken over management of the property from a different property management firm but had not received the tenancy documents early on in their management. The landlord said they had no intention of asking the tenant to enter into a new tenancy agreement but had only asked the tenant to fill out an application so that the details of the new landlord and the tenant’s personal details could be updated, and that the terms of the existing tenancy agreement would still apply. They said the tenant refused to do this, so it was never updated. I note the wording of the landlord’s email of 15 November 2024 to the tenant refers to the landlord creating a “tenancy agreement” for the property, rather than an application to update the parties’ details, which I find ambiguous. The tenant’s concern about this potentially meaning a new tenancy agreement was required was understandable. However, the landlord’s email of 4 December 2024 to the tenant, which clarified the rent was staying at $600.00 per week, also said, “I am now just waiting for Property Brokers to provide us with a copy of your tenancy documents to make sure everything is all set and correct, then I will reach out to you again for the tenancy agreement under Ray White while still following through the original terms of your agreement when the property was still with Property Brokers.” In my view, this made clear to the tenant that the terms of his tenancy agreement were not going to change.
- The property manager said further that the letter to WINZ that they provided for the tenant, which had the incorrect amount of rent of $650.00 rather than $600.00 had been an error on the part of their administrative staff, which was later corrected in their email to the tenant dated 4 December 2024, after the tenant pointed the error out in his email on 3 December 2024. The landlord pointed out this was the only document that had the figure of $650.00 per week rent in it, and that they had no intention of increasing the rent, nor had this ever been discussed with the tenant by them.
- The landlord went on to say that, whilst the new owners initially intended for the tenancy to continue and confirmed the property had sold with the existing tenancy of Mr Kahukoti, the new owners then experienced a downturn in their own business in Christchurch, as builders, and wanted to proceed earlier with plans to develop the tenancy property further instead. The property manager provided emails between them and the new owners, which confirmed that, as early as 19 December 2024, the new owners wanted to carry out extensive renovations on the property, which were confirmed to include remodelling the bathroom and kitchen, adding a heat pump, repainting the interior, putting in new carpets, repairing exterior cladding, cleaning and checking the guttering and roof, adding decks at the entrance and off the living area and checking the garage for repair work and lining the inside of the garage with appropriate material. The new owners pointed out the bathroom and kitchen remodelling would require periods without any water and also said there would be periods without power for periods to achieve the other work. As such, they said it is unreasonable and impractical for the tenant to remain living at the property. The property manager said the new owners, who are builders, will be carrying out the renovation work themselves over a period of a few months probably. Further, the new owners apparently wish to put another small dwelling on the section in addition to the current house, and have investigated the possibilities of this, with Council consent information also sought by them. The property manager said he provided the emails from the new owners in this regard to show they are serious in their intentions to complete extensive renovations and develop the property further.
- The tenant said he had not been provided with this level of detailed information by the landlord about the new owners plans for the property and pointed out that, it was a very short period of time between him being told his tenancy could continue after the sale, before the new owners apparently then had development and renovation plans which meant his tenancy could not then continue.
- I am satisfied the termination notice dated 28 January 2025 is compliant with the technical requirements for a termination notice as set out in section 51(3) RTA: it is in writing, it identifies the premises and specifies the expiry date for ending the tenancy, it gives the reason for the termination and it is signed in name by the landlord. The minimum notice period of 90 days, including for service, has been given in accordance with section 51(2) RTA.
- I have dealt, above, with my finding that Mr Kahukoti’s application is outside of the 28 working days’ requirement. However, the claim is being dealt with in the alternative here.
- The question then becomes whether Mr Kahukoti had been exercising any of his rights, powers, authorities, or remedies, or making any complaint, prior to the issuing of the Notice, which motivated the landlord wholly or partly to give the termination notice.
- From the evidence provided about Mr Kahukoti raising issues about signing a new tenancy agreement and challenging the landlord’s ability to increase the rent within a 12-month period, I find it likely that he was exercising his rights, powers and remedies and was complaining about these issues.
- However, the landlord provided evidence that they had no intention of asking the tenant to enter into a new tenancy agreement and their email of 4 December 2024 to the tenant confirmed that any new tenancy agreement under Ray White would still follow the original terms of the tenant’s agreement when the property had been managed by Property Brokers earlier.
- Further, the landlord also clarified they had no intention of increasing the tenant’s rent, nor had they issued any rent increase notice to the tenancy or discussed doing this with the tenant, and said the letter to WINZ they did for the tenant that set out the rent at $650.00 was an administrative error, which was later clarified by them to the tenant on 4 December 2024, the day after the tenant raised this issue with them by email on 3 December 2024.
- Thus, it appears that, due to the communication issues between the parties, they were working at cross purposes and, whilst the tenant believed the landlord required him to enter a new tenancy agreement on different terms, and that the landlord intended to increase the rent, the landlord’s evidence was that they had no intention of doing either and had not indicated otherwise to the tenant. As such, even though the tenant exercised his rights to raise these issues, these were not issues which the landlord intended or said they had indicated to the tenant they wished to pursue. Based on this evidence, especially that the landlord had no intention of asking for a new tenancy agreement on different terms or increasing the rent, as well as the evidence provided by the landlord about the owner’s clear intention to carry out extensive renovations themselves at the property, and the owners investigations about any required Council consents for their plans, from as early as 19 December 2024, which would take around 2-3 months and lead to a situation without water and power that would make it impractical for the tenant to remain living at the property during the renovations, I find that, despite the tenant raising these issues with the landlord, the landlord has rebutted any presumption that they were wholly or partly motivated by the tenant’s action, in issuing the termination notice dated 28 January 2025 to the tenant. As such, the tenant’s claim for retaliatory notice and for a declaration that the termination notice is invalid and of no effect, is dismissed. Therefore, the termination notice dated 28 January 2025 stands. Unlawful entry
- [The tenant/s] claims the landlord has entered the premises without consent or notice.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant said he was very sick and bedridden at home when, on 28 November 2024, he heard his dogs going off barking and his children saying to somebody that he was sick and to come back another time. He indicated his children were en route to a marae event to see his grandchild perform at the time. He said he got up and went to the front door, went out onto the path and called over his dog, who was barking, and that he then guessed there was an “implied consent” that the property manager, Mr Harrison, who had been at the gate, could come onto the property. The tenant said he had a conversation with Mr Harrison, encouraged his daughter, who had apparently been using inappropriate language with Mr Harrison, to leave for her marae event, but said that he could not remember what was discussed as he was so ill at the time, but thought it was likely about him signing a new tenancy agreement. Mr Kahukoti said the landlord did not give him any notice of his intention to come onto the property.
- Mr Harrison, the property manager, said that, out of concern for the tenant’s welfare, as there had been no response from the tenant to several emails from his office, or an insufficient response to them at best, he decided to drive past the property to check on Mr Kaukoti. He said he pulled up in his car and the property’s front gate was already ajar and the dogs were going off. He indicated he did not wish to get out of the car as he is worried about such dogs but then Mr Kahukoti’s daughter came out and he got out of the car and stood at the gate. He indicated he was then invited onto the property by Mr Kahukoti who had come out of the house, that Mr Kahukoti told his daughter to leave Mr Harrison alone, and that he and Mr Kahukoti had a conversation, then he left. Mr Harrison said he would never go onto a tenant’s property without either being invited or providing a proper notice.
- As both parties have very different versions of what occurred on 28 November 2024 at the property and, in the absence of any additional supporting evidence from the tenant, such as witness statements from others present at the time, I find there is insufficient evidence from the tenant to show that the landlord went onto the property without the tenant’s consent. As such, I dismiss this claim. Failure of landlord to honour terms of existing tenancy agreement
- Mr Kahukoti said the landlord failed to uphold their obligations under his existing tenancy agreement and referred to sections 15 and 43 of the RTA in this regard. The tenant said the landlord did not provide him with notice of the new owners.
- Section 15 of the RTA provides that, where, during the term of the tenancy, the landlord’s interest passes to some other person, that other person shall, within 10 working days thereafter, cause the other party to the tenancy to be notified of the other persons’ full name and contact address and their address for service.
- Mr Kahukoti confirmed he had received a phone call from Mr Harrison on 13 November 2025 that the property had been sold and that they were managing the property. There was then an email from the landlord’s staff on 15 November 2024 to the tenant asking about his details to update (or “create” as per the email) the tenancy agreement, which included the property manager’s contact details and address at the bottom of the email. The landlord said they had satisfied the requirements of section 15 RTA in this regard.
- Whilst there was a casual phone call from the property manager to the tenant, possibly on 13 November 2024, about the property selling and Mr Harrison’s firm taking over management of the property, there was no evidence of any type of formal notice provided from the new landlord to the tenant, pursuant to section 15 RTA, of the owners and new property manager’s full names, contact addresses and their respective addresses for service. There was an assumption on the part of the property manager that the tenant would have read their email of 15 November 2024 and have seen their name and address at the bottom of the email. However, I find that Parliament’s intent in enacting section 15 of the RTA was likely that of requiring a more formalised approach of a new landlord formally notifying the tenant of their full name, contact address and address for service. Were there not to be a more formal approach adopted, why then would the legislature have required the provision of an address for service to a tenant pursuant to section 15 RTA?
- As the new landlord did not provide a notice pursuant to section 15 of the RTA as I find was likely required, I find the landlord has breached section 15 of the RTA and has committed an unlawful act.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 15(2) and Schedule 1A Residential Tenancies Act 1986.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- Similarly, in this situation, the landlord allowed a situation to continue and still has not provided evidence that they have formally notified the tenant of the new landlord’s full name, contact details and address for service. As such, I find that the landlord committed this unlawful act intentionally.
- I have dealt with the intent of the landlord above. The tenant expressed concerns in his documents about being able to notify the new owners of the issues he was experiencing at the property with the property management firm and was unable to do so. It is in the public interest for new landlords to notify tenants of their full names, contact details and address for service to their tenants so that any issues raised by the tenant about the property can be effectively dealt with by the correct person.
- The maximum level of exemplary damages is $750.00. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $250.00.
- Section 43 of the RTA provides that where the landlord disposes of his or her interest in the premises to any other person (the purchaser), the landlord shall provide written notice to the tenant of the disposition, including the name and contact address of the purchaser so far as those particulars are known to the landlord.
- Mr Kahukoti said he had not received any such written notice from his previous landlord when the property sold. As this claim pursuant to section 43 RTA is more appropriately brought against the previous landlord, or the seller of the property, and not the purchaser landlord, I dismiss this claim. Landlord rent breach
- Mr Kahukoti said the landlord has breached section 24(1)(e) RTA, in that they attempted to increase the rent within 12 months from when the last increase took effect. He indicated he had had a rent increase from $550.00 to $600.00, effective 4 October 2024, under the previous property management firm. Mr Kahukoti said the landlord tried to increase his rent to $650.00, which was shown by the letter the landlord wrote to WINZ indicating his rent was $650.00 per week.
- Mr Kahukoti acknowledged that he was aware of what a formal rent increase notice looks like, as he had received one from his previous landlord for the increase effective 4 October 2024. He confirmed he had not received any such rent increase notice from the new landlord or property manager. He did not accept Mr Harrison’s contention that the rent amount of $650.00 in the WINZ letter had been an administrative error, however.
- Mr Harrison said the landlord had not issued any rent increase notice to Mr Kahukoti, nor did they have any intention of increasing his rent, nor did they ever attempt to discuss any rent increase with Mr Kahukoti. He reiterated that the rent amount of $650.00 in the WINZ letter had been an administrative error, which was later clarified by them to the tenant on 4 December 2024, after the tenant emailed them about this on 3 December 2024.
- As there is no evidence of any rent increase notice issued to the tenant and the landlord’s evidence was that they had no intention of increasing the tenant’s rent and the WINZ letter rent amount of $650.00 was an administrative error, I find there is insufficient evidence provided by the tenant to prove that it is likely the landlord sought to increase the rent and so dismiss the claim. Filing fee
- Because [The tenant/s] has partly succeeded with the claim I reimburse the filing fee.