What was Tenancy Tribunal case 5508254 about?

The tribunal order states: Whangarei Real Estate Ltd (as agent for Laura Osborne) is granted possession

How much money was awarded in case 5508254?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5508254?

The dispute type was not classified.

Where can I read the official tribunal order for case 5508254?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/14007056-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5508254 about?

The tribunal order states: Whangarei Real Estate Ltd (as agent for Laura Osborne) is granted possession

How much money was awarded in case 5508254?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5508254?

The dispute type was not classified.

Where can I read the official tribunal order for case 5508254?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/14007056-Tenancy_Tribunal_Order.pdf.

Unit 2, 75 Blue Horizon Road, Whangarei Heads, Tenancy Tribunal Case 5508254 — Tenancy dispute

Order

Whangarei Real Estate Ltd (as agent for Laura Osborne) is granted possession of the premises at Unit 2, 75 Blue Horizon Road, Whangarei Heads, Whangarei Heads 0174 at 12.00 noon on Wednesday 19 August 2026.
The tenant’s application is dismissed.

Reasons

Background

The tenancy began on 26 March 2021. It is a periodic tenancy.
There are three dwellings at 75 Blue Horizon Road – a larger house that is used for short-stay accommodation, and two smaller units that were tenanted. Mr Aston occupied one of the units.
On 7 April 2026 Harcourts Just Rentals issued a 90-day notice to terminate Mr Aston’s tenancy on 6 July 2026.
Mr Aston has not left the property.
Mr Aston’s application raises issues relating to retaliatory notice and unlawful residential premises. Harcourts Just Rental’s cross-application seeks an order for possession.
The hearing took place in Whangarei on 5 August 2026. Both parties participated in the hearing. Ms Marsh and Ms Venables represented the landlord. Positions of the parties
Mr Aston said that: a. He became aware that the premises did not have Resource Consent for use as rentals. b. Earlier this year, the owner gave him permission to access the main house to assist with the Airbnb business. He tidied up around the house and he also used the washing machine there (with consent). c. In late March, the locks on the main house were changed and he was abruptly told that he was no longer permitted to go there. d. Several days later he received a 90-day termination notice. e. He was a good tenant for 5 years and never caused any issues. He thinks that the termination may be motivated by: i. The fact that the premises are being used outside of the conditions of the Resource Consent; and / or ii. The fact that the property managers were unaware that the owner had given him permission to access the main house and assumed he was trespassing.
Mr Aston acknowledged that he has to leave the property. He sought a longer time to vacate, and some financial contribution from the landlord towards his moving costs.
Ms Marsh and Ms Venables said that: a. They had repeatedly told Mr Aston that he was not permitted to access or use the main house. b. The information available to them in late March indicated that someone other than Mr Aston may have accessed the property without permission, and the owner instructed them to change the locks. c. The owner was not aware of the anomaly in the resource consent, and (in their view) the premises are lawful. Law
The Tenancy Tribunal may declare a termination notice retaliatory if the Tribunal is satisfied that, in giving the notice, the landlord was motivated (wholly or partly) by the tenant exercising a legal right or power or raising a complaint against the landlord in respect of the tenancy. 1
The Tenancy Tribunal may provide a range of remedies to the tenant if the Tribunal is satisfied that the premises were unlawful residential premises.
Unlawful residential premises are premises that: 2 a. Are used for occupation for a person as a place of residence, but i. Cannot lawfully be occupied for residential purposes; and ii. The unlawfulness has been caused (or contributed to) by the landlord’s:
Failure to comply with all requirements in respect of buildings, health and safety; 3 or
Failure to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes. 4 Discussion
Ms Marsh and Ms Venables said that they have no information about why the owner decided to terminate Mr Aston’s tenancy. They said that Harcourts Just Rental’s agency will end when Mr Aston vacates the premises.
In determining retaliatory notice applications, the Tribunal is required to ascertain the motivation of the landlord in giving the notice. It is difficult to evidence a state of mind. The Tribunal usually does so by considering the timing around the tenant exercising a legal right or power and the landlord issuing a termination notice. If the landlord issues a termination notice soon after a tenant exercises a legal right power then, in the absence of any other information, this raises an inference that the termination was a response to (was motivated by) the tenant attempting to exert their rights.
My finding is that there are two difficulties in Mr Astor’s claim: a. The issue of possible unlawfulness was not new. It did not come to light in March 2026. By Mr Astor’s own evidence, it came to light about a year 1 Section 54 Residential Tenancies Act 1986 2 Section 78A(2) RTA 3 Section 45(1)(c) RTA 4 Section 36 RTA before, due to a dispute involving a neighbour. Mr Astor speculated that there may have been some development or change in (or around) March which meant that the owner had to take action, perhaps at the insistence of the local Council. However, this is speculative and there is no evidence to support it. b. Mr Astor’s use of the main house was not the exercise of a legal right or power. This area is outside of the tenanted premises and his use of it was entirely at the discretion of the owner. Although I accept that Mr Astor originally had permission to access the house, that permission was withdrawn, and the owner was entirely within her rights to withdraw it.
Therefore, I find that there is no basis for a declaration that the termination notice is retaliatory.
The notice is valid and effective. The landlord is entitled to an order for possession of the premises. At the hearing, the landlord agreed to allow the tenant another two weeks to vacate the premises. Possession is granted to the landlord at 12.00 noon on Wednesday 19 August 2026.
Mr Astor’s argument about unlawfulness relates to the Resource Consent that was granted for the development in 2004. The Resource Consent includes several conditions, including that: The apartments are to be used for commercial purposes only. None of the apartments are to be used for residential living.
It is not obvious what this condition means. The apartments / units are clearly intended for residential living. They are apartments, not offices or storage units. They have residential amenities such as a bathroom and a kitchen.
One possible interpretation is that the apartments are not intended to be used as a permanent place of residence by the owner – they must be used in the course of a business activity. If this interpretation is correct, then renting them out under periodic or fixed term tenancies complies with the condition. Renting out a property is using it for a “commercial purpose”.
Another possible interpretation (which Mr Astor argued) is that the condition requires that the apartments must be used for short stay accommodation only, in which case renting them under longer term tenancies (such as his) violates the condition.
That is a possible interpretation, but it is by no means clear and obvious. The condition does not refer to short stay or holiday use.
The other difficulty for Mr Astor is that, even if it was clear that his tenancy was in breach of the resource consent condition, it is not the case that the unlawfulness was caused or contributed by any failure on the part of the landlord. I acknowledge Ms Venables’ argument that: a. There are no consent notices registered on the title. b. Building Consent and Code of Compliance were obtained for the construction of the units. c. The owner had no reason to think that the units could not be used for residential occupancy and no reason to scrutinise the 2004 resource consent.
Therefore, I find that the premises do not meet the Residential Tenances Act definition of “unlawful residential premises” and there is no basis for the Tribunal to grant any remedies to Mr Astor under that part of the RTA. Outcome
Although Mr Astor had genuine and reasonable concerns about the circumstances around the termination notice, and the legality of the premises, for the reasons given above my finding is that the relevant legal thresholds are not met. Therefore there is no legal basis to cancel or ‘pause’ the termination, and no basis to require the landlord to pay Mr Astor any compensation.
The tenant’s application is dismissed.
Possession is granted to the landlord.

Reasons

Background

The tenancy began on 26 March 2021. It is a periodic tenancy.

There are three dwellings at 75 Blue Horizon Road – a larger house that is used for short-stay accommodation, and two smaller units that were tenanted. Mr Aston occupied one of the units.

On 7 April 2026 Harcourts Just Rentals issued a 90-day notice to terminate Mr Aston’s tenancy on 6 July 2026.

Mr Aston has not left the property.

Mr Aston’s application raises issues relating to retaliatory notice and unlawful residential premises. Harcourts Just Rental’s cross-application seeks an order for possession.

The hearing took place in Whangarei on 5 August 2026. Both parties participated in the hearing. Ms Marsh and Ms Venables represented the landlord. Positions of the parties

Mr Aston said that: a. He became aware that the premises did not have Resource Consent for use as rentals. b. Earlier this year, the owner gave him permission to access the main house to assist with the Airbnb business. He tidied up around the house and he also used the washing machine there (with consent). c. In late March, the locks on the main house were changed and he was abruptly told that he was no longer permitted to go there. d. Several days later he received a 90-day termination notice. e. He was a good tenant for 5 years and never caused any issues. He thinks that the termination may be motivated by: i. The fact that the premises are being used outside of the conditions of the Resource Consent; and / or ii. The fact that the property managers were unaware that the owner had given him permission to access the main house and assumed he was trespassing.

Mr Aston acknowledged that he has to leave the property. He sought a longer time to vacate, and some financial contribution from the landlord towards his moving costs.

Ms Marsh and Ms Venables said that: a. They had repeatedly told Mr Aston that he was not permitted to access or use the main house. b. The information available to them in late March indicated that someone other than Mr Aston may have accessed the property without permission, and the owner instructed them to change the locks. c. The owner was not aware of the anomaly in the resource consent, and (in their view) the premises are lawful. Law

The Tenancy Tribunal may declare a termination notice retaliatory if the Tribunal is satisfied that, in giving the notice, the landlord was motivated (wholly or partly) by the tenant exercising a legal right or power or raising a complaint against the landlord in respect of the tenancy. 1

The Tenancy Tribunal may provide a range of remedies to the tenant if the Tribunal is satisfied that the premises were unlawful residential premises.

Unlawful residential premises are premises that: 2 a. Are used for occupation for a person as a place of residence, but i. Cannot lawfully be occupied for residential purposes; and ii. The unlawfulness has been caused (or contributed to) by the landlord’s:

Failure to comply with all requirements in respect of buildings, health and safety; 3 or

Failure to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes. 4 Discussion

Ms Marsh and Ms Venables said that they have no information about why the owner decided to terminate Mr Aston’s tenancy. They said that Harcourts Just Rental’s agency will end when Mr Aston vacates the premises.

In determining retaliatory notice applications, the Tribunal is required to ascertain the motivation of the landlord in giving the notice. It is difficult to evidence a state of mind. The Tribunal usually does so by considering the timing around the tenant exercising a legal right or power and the landlord issuing a termination notice. If the landlord issues a termination notice soon after a tenant exercises a legal right power then, in the absence of any other information, this raises an inference that the termination was a response to (was motivated by) the tenant attempting to exert their rights.

My finding is that there are two difficulties in Mr Astor’s claim: a. The issue of possible unlawfulness was not new. It did not come to light in March 2026. By Mr Astor’s own evidence, it came to light about a year 1 Section 54 Residential Tenancies Act 1986 2 Section 78A(2) RTA 3 Section 45(1)(c) RTA 4 Section 36 RTA before, due to a dispute involving a neighbour. Mr Astor speculated that there may have been some development or change in (or around) March which meant that the owner had to take action, perhaps at the insistence of the local Council. However, this is speculative and there is no evidence to support it. b. Mr Astor’s use of the main house was not the exercise of a legal right or power. This area is outside of the tenanted premises and his use of it was entirely at the discretion of the owner. Although I accept that Mr Astor originally had permission to access the house, that permission was withdrawn, and the owner was entirely within her rights to withdraw it.

Therefore, I find that there is no basis for a declaration that the termination notice is retaliatory.

The notice is valid and effective. The landlord is entitled to an order for possession of the premises. At the hearing, the landlord agreed to allow the tenant another two weeks to vacate the premises. Possession is granted to the landlord at 12.00 noon on Wednesday 19 August 2026.

Mr Astor’s argument about unlawfulness relates to the Resource Consent that was granted for the development in 2004. The Resource Consent includes several conditions, including that: The apartments are to be used for commercial purposes only. None of the apartments are to be used for residential living.

It is not obvious what this condition means. The apartments / units are clearly intended for residential living. They are apartments, not offices or storage units. They have residential amenities such as a bathroom and a kitchen.

One possible interpretation is that the apartments are not intended to be used as a permanent place of residence by the owner – they must be used in the course of a business activity. If this interpretation is correct, then renting them out under periodic or fixed term tenancies complies with the condition. Renting out a property is using it for a “commercial purpose”.

Another possible interpretation (which Mr Astor argued) is that the condition requires that the apartments must be used for short stay accommodation only, in which case renting them under longer term tenancies (such as his) violates the condition.

That is a possible interpretation, but it is by no means clear and obvious. The condition does not refer to short stay or holiday use.

The other difficulty for Mr Astor is that, even if it was clear that his tenancy was in breach of the resource consent condition, it is not the case that the unlawfulness was caused or contributed by any failure on the part of the landlord. I acknowledge Ms Venables’ argument that: a. There are no consent notices registered on the title. b. Building Consent and Code of Compliance were obtained for the construction of the units. c. The owner had no reason to think that the units could not be used for residential occupancy and no reason to scrutinise the 2004 resource consent.

Therefore, I find that the premises do not meet the Residential Tenances Act definition of “unlawful residential premises” and there is no basis for the Tribunal to grant any remedies to Mr Astor under that part of the RTA. Outcome

Although Mr Astor had genuine and reasonable concerns about the circumstances around the termination notice, and the legality of the premises, for the reasons given above my finding is that the relevant legal thresholds are not met. Therefore there is no legal basis to cancel or ‘pause’ the termination, and no basis to require the landlord to pay Mr Astor any compensation.

The tenant’s application is dismissed.

Possession is granted to the landlord.

Tenancy Tribunal case 5508254 — Tenancy dispute at Unit 2, 75 Blue Horizon Road, Whangarei Heads,

At a glance

Claims & awards

Tenancy Tribunal case 5508254 — Tenancy dispute at Unit 2, 75 Blue Horizon Road, Whangarei Heads,

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Reduce avoidable tribunal risk with proper tenant checks.