What was Tenancy Tribunal case 5245151 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 5245151?

Rent Arrears: $720.00 awarded to landlord

What type of tenancy dispute was case 5245151?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5245151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11833651-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5245151 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 5245151?

Rent Arrears: $720.00 awarded to landlord

What type of tenancy dispute was case 5245151?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5245151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11833651-Tribunal_Order_Redacted.pdf.

638A Te Ngae Road, Owhata, Rotorua 3010 Tenancy Tribunal Case 5245151 — Rent arrears

Claims and awards in Tenancy Tribunal application 5245151 — net $720.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 8/5/2025	$720.00	Rent arrears to 8/5/2025
Net award	$720.00
Total payable by Tenant to Landlord	$720.00

Claims and awards in Tenancy Tribunal application 5245151 — net $720.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 8/5/2025	$720.00	Rent arrears to 8/5/2025
Net award	$720.00
Total payable by Tenant to Landlord	$720.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and tenant’s names and identifying details.
[The tenant/s] must pay [The landlord/s] $720.00 immediately, being rent arrears to 8/5/2025.
The rent for the period from 20 February 2025 until the end of the tenancy is reduced to $600 per week, which the Tribunal determines is fair market rent for the property.
The rent increase from 22/12/2023 is set aside and the rent from 22/12/2023 until 20/2/2024 is calculated at $800 per week.
The landlord’s application for termination of the tenancy on the basis of rent arrears is dismissed.
[The landlord/s] is granted possession of the premises at 638A Te Ngae Road, Owhata, Rotorua 3010 at 6pm on Thursday 19 June 2025.

Reasons

Both parties attended the hearing.
The tenant originally applied on 30/9/2024 for a number of orders, including an order setting aside 90-day notice issued by the landlord on 18 September 2024 on the basis the notice was either unlawful or retaliatory (or both) and exemplary damages.
A case conference was convened on 11/12/2024 and then an urgent hearing set to consider the validity of the termination notice.
The Tribunal minute issued on 12/12/2024 said that enforcement of the 90-day notice that was due to expire on 17 December 2024 was stayed (could not be enforced) until the Tribunal issued an order in relation to the claim that the notice must be set aside as either retaliatory or unlawful (or both).
A further hearing was therefore scheduled urgently for 22/1/2025. On 21/1/2025 Counsel acting for the tenant requested an adjournment due to illness. This was granted and the claims set for hearing on 12 February 2025. The hearing was again expedited as the issue of the validity of the 90-day notice was considered urgent. The stay of enforcement continued to be operative.
The application was then withdrawn by the tenant/her Counsel shortly before the scheduled hearing. The stay of enforcement, was lifted.
Somewhat unusually, a very similar application was then relodged with the Tribunal on 20/2/205.
The issues finally being heard on 8 May 2025.
The difficulties with the way in which the claim has ben lodged and relodged and the delays, were highlighted by the landlord.
The Tribunal noted that a 90-day notice can ordinarily only be enforced for 90 days after the termination date s64(2). In this case 90 days after 17/12/2024, which has now long since expired.
It was confirmed that there are no current maintenance or other issues outstanding and that pursuant to a change to the RTA effective from January 2025, landlords can now give notice without reason (or for a minimum of 42 days with reasons provided).
The tenant confirmed she has been looking but not found anywhere else to live. The parties agreed that the tenancy is to end in 42 days and in the circumstances, it was fair to make an enforceable possession order by consent.

Was the notice issued unlawful?

Under Section 60AA of the RTA, as it then applied, a landlord could not give a notice to terminate a tenancy or apply to the Tribunal for such an order, knowing they were not entitled to do so. There was only a limited number of reasons provided in the RTA that permitted a landlord to give notice to end a tenancy.
Issuing unlawful notice without a reasonable excuse was an unlawful act for which exemplary damages could be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The tenant claims that the notice issued was unlawful, as the landlord’s stated intention to convert the property to an Air b n b was not valid in accordance with s 51(2)(e). The tenant submits that even if the premises were to be used as an Air b n b, the house was still to be rented as residential accommodation and there was no real change in use to a commercial premise.
The landlord says the property was an Air b n b prior to the Covid pandemic. It was only because of the upheaval to the rental market caused by the pandemic that it was changed to a longer-term residential tenancy. It was more profitable to operate it as an Air b n b and his financiers were putting pressure on him to either sell the property or increase the income from it.
I have determined that the notice was genuinely given and that the change from a long-term rental to an air b n b was a change of use and conversion to a different commercial use.
While I considered the IRD definition of Air b n b referred to by Counsel, which states that the income from an Air b n b, is to be treated as residential income for tax purposes, I have given more weight to Tenancy Tribunal decisions which have said that Air BnB properties are not residential premises because they do not meet the definition of ‘residential premises’ in the RTA:
The reason provided in those decisions is that to be residential premises, the premises must be used as “a place of residence” which the Tribunal has interpreted to mean a place where tenants live for a longer term, in contrast to the usually very temporary accommodation offered by an Air BnB. The Tribunal has in fact sanctioned tenant’s for subletting rental premises as short term air b n b rentals and the District Court has supported this approach, noting that one type of rental, although both are for residential purposes, is quite different from the other.
In addition, the landlord’s submissions that operating an Air b n b generates more income and he was forced by his financial position, to make the change is accepted.
The landlord’s submission that operating an Air b n b allowed more control over the property, in the sense of being able to attend to maintenance, clean up and prepare the property for market is accepted. Evidence was provided confirming the landlord’s intention to market the property for sale.
In summary I find the intention to convert the premises to an Air b n b was genuine and that the change would meet the definition of a conversion to a commercial premises.
Even had I found the notice was not given for genuine reasons or the Air b n b not commercial, the Tribunal can only award exemplary damages if the landlord has intentionally provided notice that is unlawful.
The fact the law is not entirely clear as regards the definition of residential premises, would mean the landlord would need to be given the benefit of doubt and the exemplary damages would not be awarded.

Was the notice retaliatory?

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.
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 Residential Tenancies Act 1986.
The tenant’s argument was that the landlord gave notice because she had issued a 14 day notice the day prior requesting that the oven be repaired as it was not working.
The landlord says that the termination notice was given because of his financial difficulties and consequent need to generate more income from the property. He says that similar notice was given to the adjoining tenant (in the one-bedroom property) for the same reason. Both properties are on one title and his intention was to get them into a condition to sell them and generate Air Bn B income prior to the sale. The tenant of the smaller unit, has left as required, and he is now making more money from that unit as an Air b n b. He also has greater flexibility to put that property on the market for sale if that is required.
The landlord said it was always their intention to revert this rental back to an Air b n b once the Covid pandemic was over and there was more of a demand for this type of short-term accommodation.
He also says that he sent a tradesperson to look at the oven as soon as he could arrange this after receiving the 14 day notice, and the oven was replaced only a short time later, in early October.
The landlord requested that the application be dismissed as he did not give 90- day notice in response to the tenant’s request regarding the stove.
As outlined at the hearing, the closer in time the landlord issues notice to end the tenancy and the reasonable request from the tenant to have maintenance attended to, the more likely it is the Tribunal will find the required link in the sense that the tenants reasonable request has at least in part, been the reason for the issuing of the notice. That is not always the case, and in this case, I accept that the actions were independent of each other.
I find it likely that the landlord issued the notice because it needed to convert the premises to an Air b n b while they were tidied for sale. That was because of financial pressure and was always the intention. The fact the landlord issued the same notice to the adjoining tenant, supports this finding.
I dismiss the claim for an order setting the notice aside (which is now redundant in any event as the notice cannot be enforced) and the claim for exemplary damages.

What are the rent arrears?

The landlord has applied for rent arrears and provided rent records which prove the amount of $5,660 is owing.
The tenant challenges the rent arrears calculation for two different reasons.
The first is that a rent increase, that purported to increase the rent from $800 to $860 on 22/12/2023 should be set aside as the tenant was not properly notified that the rent was to increase.
The landlord says that the rent increase was set out and agreed to by the tenant when she signed the tenancy agreement a year prior. The agreement says the rent is to be $800 for the first year and then to increase to $860. The landlord says this clause on the tenancy agreement, was sufficient notification and the rent increase should be applied. He also refers to 2 tenancy mediations held with the tenant, in February and April 2023 and says he questioned the tenant at the time about the affordability of the rent noting that it was due to increase. The tenant said she recalled the mediation but does not recall the discussion about the rent increase.
When questioned the tenant said that at the time she originally signed the tenancy agreement she was living in her car with her children. She was desperate for somewhere to live. She signed the agreement but did not recall that it included a term increasing the rent a year later. The agreement was put in the glovebox of the car, and she did not read it again.
The landlord agrees that he did not send a notice reminding the tenant of the rent increase. I accept that the tenant did not in fact know about the increase, or the arrears that had subsequently arisen, until she recently saw the rent summary provided as part of the landlord’s claim for rent arrears recently filed. The tenant’s first application to the Tribunal was filed on 30/9/2024. It notes that the rent is $800 per week supporting a finding that she did not know of the increase to $860 at that time. The second Tribunal application was made on 20/2/2025 and also refers to the $800 rent. Again, supporting the tenant’s evidence that until very recently she did not even know she was being charged the extra $60 rent.
I have determined on balance that the rent increase, while outlined in the tenancy agreement is not enforceable. This is because of the long delay before it was due to take effect a year later. Despite the clause being in the tenancy agreement, the landlord had an obligation to bring it to the tenant’s notice and confirm it was to be enforced, at least or around 60 days before it took effect. That is the requirement set out in s 24. While that section does not state a maximum timeframe that the notice must be given to be effective, it contemplates that around 60 days is reasonable.
This case highlights that while, notice of an increase, given a year prior might be anticipated by the parties, unless it is confirmed, then it may not be enforceable. A tenant might genuinely not read the detail of the agreement or know that the term is enforceable. A year is a long time to expect detailed recall and it is more reasonable to assume that a reminder will be issued if the increase is to be enforced.
The condition of either the property or the rental market, may change during that year, meaning that the proposed increase is no longer fair. In this case the market rent (according to Tenancy Services Bond data) does mean that average rents have decreased in this suburb. The property condition might improve or deteriorate.
Equally importantly a timelier notice of the increase would have reminded the tenant that she needed to make some provision in her budget, to pay the increased amount. An additional $60 to find each week in an already stretched budget requires some degree of planning especially in the week prior to Christmas (and possibly requests for additional WINZ accommodation allowance assistance could have been made).
In the circumstances of this case, I am not satisfied that justice and equity is served by enforcing a rent increase, as I accept the tenant did not even know of the increase until she recently received the landlord’s rent summary, more than 15 months after the event.
I have therefore calculated the rent at $800 from the commencement of the tenancy and deducted 61 weeks at $60 per week from the requested rent arrears.

Should the Tribunal reduce the rent to fair market rent?

The second claim that the tenant has made is that the rent from 20 February 2025, the date the application was made to the Tribunal, should be reduced as it is substantially in excess of market rent.
The tenant claims that the rent of $800 per week, should be set aside as the rent “exceeds market rent by a substantial amount”.
Market rent is described as: the amount a landlord might reasonably expect to receive, and a tenant might reasonably expect to pay, for a tenancy”.
The rent proposed needs to be significantly higher than the rent charged for similar properties in a similar area before the Tribunal can intervene to reduce the rent.
The issue is therefore whether $800 per week for a three-bedroom house in Owhata, which is the suburb in Rotorua, where the house is located, is rent that is substantially in excess of market rent for that area.
It is only if there is sufficient evidence to establish that this is the case, that the Tribunal can reduce the rent.
The tenant said the house would be in the lower quartile of properties in terms of its condition. The landlord said that mid-range may be a more accurate description.
The Tenancy Services bond data base must be the starting point. It keeps up to date records of bonds lodged in each area, that is updated monthly, and contains bond information from the previous 6 months. This shows average Owhata rents are currently $595 (lower quartile) and $600 (average rent) for a three-bedroom house.
While the bond data is a useful guide for landlords and tenants it should not be used alone to determine the market rent of any property.
The tenant provided details of tenancies recently let in Owhata. The first one was advertised for higher rent of $900. The property was a 5-bedroom, 2 bathrooms, 2 living area property and I accept not comparable. A second property attracted rent of $750 but was almost new and had 4 bedrooms and 2 bathrooms. 2 properties in more similar condition to this property and also on Te Ngae Rd are $570.
The landlord said that the property had a large section, a garage and a carport that meant it could not fairly be compared to other properties and might attract a higher rent. The tenant said that she did not really use the backyard as it was more part of a separate tenancy attached to a one-bedroom house on the same section. She also said that the garage had missing boards and was not watertight and while she used the carport it was not unusual to have some car parking.
The landlord’s alternative submission that the parties signed contract, agreeing to the rent, should be upheld as this was clearly the agreement they had reached, is not accepted. To accept that submission would be to disregard entirely the provisions of s24 which do contemplate the Tribunal having the ability to intervene with a parties contracted agreement regarding rent and reduce the rent.
The photographs provided show that the property had three bedrooms and one bathroom. At best it would be fairly considered to be in average condition.
I have determined that the market rent would be the average for Owhata (at best) and therefore reduced to $600. The District Court has confirmed that if rent is more than 10% higher than market rent then the “substantially higher” test is likely to be met. That test is therefore met by a very considerable margin.
The tenant accepts that the market rent can only be applied from the date of application to the Tribunal, which is 20/2/2025 (S24 (4). The order reducing the rent can only be made for a maximum period of 6 months.
As the tenancy is to end on 19/6/2025 the reduced rent is therefore to have effect from 20/2/2025 until 19/6/2025. The reduced rent until today 9 May 2025, has been considered when calculating the rent arrears owing. [The tenant/s]
[The tenant/s] claims the landlord has harassed her.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 tenants claim centred on the landlord’s requests that the tenant refrain from keeping a dog in the garage and stop her children jumping on the roof.
This was a reasonable response to the neighbours’ complaints. The landlord also requested that the tenant allow him to use the garage for storage. The tenant declined as she correctly pointed out that she had been using the garage for the duration of the tenancy.
I do not find the interaction between the parties meets the threshold of “harassment” on the part of the landlord and dismiss this claim. Failure to maintain window locks.
The tenant says the landlord delayed unreasonably in replacing or tightening window stays and she should be compensated as this was a failure to properly maintain the premises/provide locks/ adequate security.
The landlord points to the original 14-day notice issued in June 2024 and says the window stays were inspected and tightened after this. The window stays are not referred to in the subsequent 14-day notice issued in September 2024 (which states the oven needs repair). In addition, the tenant confirmed in text messages to the landlord in early October 2024, that all required work had been done.
The Tribunal will only award compensation and damages if the landlord has unreasonably failed or delayed, in attending to required maintenance.
The evidence does not establish that this threshold has been met.
As the tenancy is to end in June, no orders are made with respect to refund of the bond.
Both parties have been partly successful in the various claims made. No order is made that one is to reimburse the other for the filing fee paid. Both parties’ requests for name suppression are approved.

Tenancy Tribunal case 5245151 — Rent arrears at 638A Te Ngae Road, Owhata, Rotorua 3010

At a glance

Tenancy Tribunal case 5245151 — Rent arrears at 638A Te Ngae Road, Owhata, Rotorua 3010

At a glance

Award balance

Claims & awards

Order

Reasons

Was the notice issued unlawful?

Was the notice retaliatory?

What are the rent arrears?

Should the Tribunal reduce the rent to fair market rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the notice issued unlawful?

Was the notice retaliatory?

What are the rent arrears?

Should the Tribunal reduce the rent to fair market rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions