Published tribunal order
Tenancy Tribunal case 5534636 — 14-day notice at 102A Liverpool Street, Whanganui, Whanganui 4500
Decided 24 Aug 2026 · Published 24 Aug 2026 · Application 5534636
- 14-day notice
- Exemplary damages
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 the tenant’s name and identifying details.
- Rivercity Realty Limited As Agent For The Stylebender Ltd must pay [The tenant/s] $2,528.00 immediately being $2,500.00 in compensation and reimbursement of the filing fee of $28.00.
Reasons
- The tenant attended the hearing.
- In this Order the owner of the premises is referred to as the landlord and its Property Manager is referred to as PM. The owner is described as the landlord in the tenancy agreement.
- The PM attended the hearing and confirmed that the landlord’s sole director was aware of details of the hearing. The PM represented the landlord at the hearing as its agent.
- On 29 June 2026 the landlord through its PM gave the tenant a notice ending the tenancy on 10 August 2026. The tenant claims the notice is 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 (RTA).
- 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. Standard of proof and evidence
- In considering the tenant’s claim, the standard of proof is on the balance of probabilities. In other words, the tenant must establish with evidence that their claim is more likely than not.
- While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
- The Tribunal must have regard to the general principles of law and the substantial merits and justice of the case, as required by section 85(2) RTA.
- It is intended that this order be as concise as possible to convey the essential facts, the law and the Tribunal’s reasons for its decisions. Background
- The tenant provided evidence as follows: a. On Saturday 27 June 2026 the tenant returned to the premises and found the driveway blocked by a car which belonged to one of the people staying at one of the units in this complex owned by the landlord and rented out as an Airbnb. b. Contemporaneous photographs of the car confirming that it blocked the driveway. c. As the tenant wished to take their car out, they approached the car’s owner and asked him to move it. He responded so aggressively that the tenant feared for her safety. d. The tenant immediately notified the PM and contacted the police to lodge a complaint. e. The next day, Sunday 28 June 2026, the tenant made an email complaint to Airbnb, updated the police regarding her complaint and issued a 14-day breach notice to the landlord by email at 12.28 pm. f. The PM rejected the tenant’s notice at 6.53 pm that day on the basis that under section 38 RTA the tenant is “entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord.” The PM claimed that as the interruption was caused by the occupants of the other unit, the landlord had not breached the provisions of section 38 RTA. g. On the instructions of the landlord, the PM issued a 42-day termination notice on Monday 29 June at 10.20 am on the basis that “the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family”. h. The tenant applied to the Tribunal on 29 June 2026 to have the landlord’s notice declared retaliatory under section 54 RTA. i. On 8 July 2026 by email the tenant rejected the landlord’s termination notice as invalid because the landlord was a registered company and a corporate entity cannot have family or be able to live in the premises. j. Because of their experience in dealing with the landlord and the uncertainty caused by its actions, the tenant has put themselves under “extreme financial pressure” and purchased a property. Having given notice, the tenancy will end on 5 September 2026.
- The PM provided the following evidence: a. There are five units in the complex of which the premises form part. They are all owned by the landlord company. Two of the units are let out as Airbnb units. The remaining three units are let out as residential tenancies. b. An email from the landlord dated Sunday 28 June 2026 instructing the PM to give the tenants “a quit notice as the landlord “would like to use the property for our family purposes”. c. An email from the landlord dated Monday 29 June 2026 confirming that the PM was to issue a 42-day termination notice. This was in response to an email from the PM earlier that morning seeking clarification as to whether the landlord required a 42-day or 90-day notice to be issued and noting that giving a termination notice could be seen as retaliation. d. The landlord had advised the PM that the sole director had always intended to move into one of the units and had decided on this particular unit as it was furthest away from the Airbnb units and the tenants in the other two units “get on” with the owner. e. At present the owner lives in a property in Whanganui. f. At some point he will let out all the units as Airbnbs. g. The tenants have been excellent tenants and she tried to assist them in finding another suitable property. h. The PM accepted that the termination notice was invalid and so withdrew the termination notice on 8 July 2026. The tenant consented to the withdrawal. Discussion and decision
- While the termination notice complied with the formal requirements of section 51(3) RTA, it was [The party]theless invalid as a company cannot terminate a tenancy under section 55(2)(a) RTA. A company, being a legal entity and not a natural person, cannot have a “family” or require premises as a principal place of residence.
- Because the termination notice was invalid, the Tribunal has no jurisdiction to award the tenant exemplary damages for a retaliatory notice under section 54 RTA.
- However, on the evidence before it, the Tribunal has concluded that it is more likely than not that the landlord was motivated wholly or partly by the tenant’s complaint regarding the breach of their quiet enjoyment under section 45(1)(e) RTA and that its termination notice was intended to be retaliatory for the following reasons: a. The tenant’s evidence has persuaded the Tribunal that their complaint was valid and neither vexatious nor frivolous. The photographic evidence clearly showed that their vehicle access was blocked. b. The landlord’s notice was issued as soon as the tenant made their complaint. A short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice leads to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. For this reason, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice. c. The landlord has not discharged the onus of showing a legitimate reason for it requiring the premises for the occupation of its sole director. d. There were three units whose tenancy he could have terminated and he deliberately chose this one as he “got on” with the other tenants. This indicates an intention to rid himself of the tenant who had raised a valid complaint and whom he described in an email to the PM of 28 June 2028 as “an upstart”. e. The tenant gave evidence which was not refuted by the landlord or PM that the sole director of the landlord lives in a large and valuable property in Whanganui with his wife which contains a separate dwelling that is also let out as an Airbnb. If the landlord needed accommodation separate from his wife, he could just as easily have occupied any of the Airbnb properties at the complex or at his home without terminating the tenant’s tenancy.
- The Tribunal notes that the landlord has acknowledged the difficulties that Airbnb units can cause to the quiet enjoyment of the other tenancies by choosing the unit furthest from them. The landlord has an obligation under section 45(1)(e) RTA to “take all reasonable steps to ensure that [The party] of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises”. The fact the landlord chose a unit as far away as possible from the Airbnb units is an acknowledgement that their occupants were likely to disturb its tenants’ right to quiet enjoyment.
- Having determined that the Tribunal cannot award the tenant exemplary damages for the landlord issuing a retaliatory notice, it remains to consider whether the Tribunal should award the tenant compensation for the landlord issuing the invalid termination notice. The tenant’s application was for both exemplary damages and “reasonable damages as the breach of my quiet enjoyment by another tenant of the property owned by the same landlord and the following eviction has caused me extreme mental distress”.
- The tenant gave evidence that the encounter with the Airbnb tenant was frightening and caused her to fear for her safety, so much so that she felt compelled to notify the police of her concerns. She explained that the receipt of the 42-day termination notice after a tenancy of three and a half years was very distressing and has placed both tenants in a very upsetting and stressful situation that has persuaded them to terminate their tenancy. Their anxiety and sense of injustice was increased by the retaliatory nature of the landlord’s notice and then by its invalidity. The tenant explained that this has placed great stress and a mental burden on them.
- The Tribunal’s general damages awards have historically been low. In Birch v Otautahi Community Housing [2020] NZDC 17667 R E Neave DCJ described the Tribunal’s awards for emotional harm damages as “not particularly generous” and “fairly conservative”.
- In that case, the tenant had returned to her unit and found someone had entered without her permission. It transpired contractors had done asbestos repair work in the tenant’s unit and the landlord had mistakenly failed to give the tenant notice of the entry. His Honour found the Tribunal’s award of $200.00 of emotional harm damages for the unlawful entry was “close to being derisory”. He substituted an award of in the sum of $2,000.00 finding “it was a significant intrusion on [the tenant’s] rights”.
- By reference to Otautahi, the Tribunal has found it useful to adopt the following bands to inform its decisions on the assessment of general damages: A.At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $2,000.00. B.Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $2,000.00 to $3,000.00. C.At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of over $3,000.00.
- Having considered the evidence, the Tribunal has determined that in accordance with the general principles of the law and the substantial merits and justice of the case, it is appropriate to order that the landlord pay a sum of $2,500.00 to the tenant in compensation for the high level of mental distress, anxiety and insecurity caused by the landlord’s action in issuing the termination notice without legal justification and the landlord’s dismissal of the tenant’s concerns regarding the breach of their quiet enjoyment by a tenant of the landlord. The following factors have informed this decision: a. The Tribunal is persuaded that the decision to terminate the tenancy was retaliatory. b. The landlord chose the shortest available termination period of 42-days on grounds which are unsupported by any evidence. Nor is there any evidence before the Tribunal that the landlord considered any alternative to the option of terminating this tenancy such as occupying one of its Airbnb units or terminating any other of its tenancies. c. The landlord is an experienced and professional landlord which should have been aware that as a company it could not terminate the tenancy under section 51(2)(a) d. The Tribunal draws the reasonable conclusion that having been advised of the options by the PM, the landlord chose the shortest period of termination to exacerbate its retaliation to the “upstart” tenant. e. The landlord and the PM ignored the tenant’s right to quiet enjoyment of the premises under section 45(1)(e) RTA and dismissed her complaint, despite the tenant having been excellent tenants for a period of three and a half years. f. The impact of the termination notice on the tenant was devastating and has imposed a high level of stress and insecurity on them which has compelled them to leave the tenancy after the way in which they have been treated. Any reasonable tenant faced with losing their tenancy of three and a half years on 42-days’ notice would experience such understandable stress and anxiety. g. The fact that the landlord withdrew the termination notice once the tenant pointed out that it was invalid is a small but mitigating factor. Suppression and filing fee
- As the tenant has been substantially successful in their application, it is appropriate to grant them name suppression and reimbursement of the filing fee.