Invalid Termination Notice Ruled By Tenancy Tribunal

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[2025] NZTT 5120549

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY] as agent for [NAME] must pay [NAME] $3,027.00 immediately, calculated as shown in table below.

Description Landlord Tenant Compensation $3,000.00 Filing fee reimbursement $27.00 Total payable by Landlord to Tenant $3,027.00

REASONS

1. The Tribunal must consider an application filed by the tenant against the landlord in relation to a claimed unlawful termination of her tenancy.

2. Both parties appeared at the hearing, albeit the landlord was represented by her agent, [NAME].

BACKGROUND

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3. The landlord in this case is [NAME] by way of an agent, property manager [COMPANY].

4. The tenant is [NAME].

5. The parties entered into a tenancy agreement for the premises at [ADDRESS], Epsom, that commenced in July 2020.

6. On 9 July 2024, the landlord issued the tenant a notice terminating the tenancy, requiring that possession return on 10 September 2024. The reason given for the termination was that:

The landlord and/or his/her family require the property for their own use. 7. The tenant then set about finding an alternate tenancy, which she managed

to find, and gave her own notice, ending the tenancy on 19 August 2024.

8. The tenant has subsequently filed this application with the Tribunal as she believes there were no genuine reasons to terminate the tenancy.

APPLICANTS CLAIM

9. The tenant’s claim is that the notice given by the landlord was not valid, as the landlord did not move into the premises within 90 days of the tenancy end date. The tenant seeks orders in relation to that breach. In her application, the tenant states:

…the landlord breached Section 51(1)(a) of the Act, which stipulates that the landlord must occupy the property within 90 days of the termination date and maintain occupancy for at least 90 days. The property has remained vacant for over 90 days since September 10, 2024, indicating that the landlords notice was not genuine, and the termination of [NAME]'s rental agreement was therefore not valid.

TENANTS CASE

10.The tenant states that on 9 July 2024, she received a termination notice on the basis that the landlord needed the premises for personal use. The tenant says that as a result of the notice she needed to find an alternate property, which resulted in significant stress and inconvenience to her.

11.Ultimately somewhere else was found, and the tenant gave earlier notice.

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12.The tenant considers that the landlord’s notice was not consistent with the statutory requirement that the landlord move into the premises within 90 days, which did not occur.

13. In concluding submissions, the tenant submits that the need for her to move out was unnecessary, and that she has been pushed out of her home just so the landlord can build a tennis court.

LANDLORDS CASE

14.The property manager states that the landlord had proper intention to move into the premises at the end of the notice period, even though that did not eventuate.

15.The property manager states that the owner wanted to build a tennis court at her own property, and wanted to move into the tenancy dwelling while that was taking place, and was the reason why the landlord gave notice ending this tenancy.

16.The property manager refers to the evidence provided in relation to delays (as I will summarise below), to explain why the landlord has not moved into the premises.

17.The property manager confirmed that as of today (the hearing date) the premises are still empty, and it would not make sense that the tenancy be terminated for sham reasons, to then keep the premises empty, so not earning a return from rent.

18. In support of the landlords defence, a statement was provided from [NAME] being an email dated 17 April 2025, setting out the landlord’s explanation of what happened.

19.The landlord states she intended to build a tennis court at her house, and gave notice to [NAME] because her intention was to move into the tenancy dwelling while that work was going on

20.The landlord stated:

Initial Notice: On July 9, 2024, my property manager served a 63 - day notice to the tenant, stipulating that they were to vacate the property by September 10, 2024. The intention behind this notice was to allow my family and me to move back into 2 Highwic Ave during the tennis court project at [ADDRESS]. Given that I have three young children under the age of 10, I was concerned about their safety during the renovation work at 2 Highwic Ave, especially as the property had been rented for five years and required maintenance.

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21.The landlord went on to explain that after the tenant had moved out, she made various renovations to the tenancy dwelling, and travelled overseas for about three weeks on 30 September 2024. The landlord states that in November 2024, her child fell ill, which took precedence for her. No progress was made over the Christmas period, and the resource consent was eventually approved in March 2025. Painting work was then completed at the tenancy in March 2025, and the replacement of underfloor heating is scheduled for April 2025. The landlord states that as of 8 April 2025, she is currently overseas in Hong Kong, to address visa issues for her son.

22.The landlord concludes:

I have always had the genuine intention to move into 2 Highwic Ave as soon as possible. However, a series of unforeseen circumstances, including the complex consent - obtaining process, family health issues, and necessary overseas travel, have hindered my ability to do so within the originally anticipated 90 - day period. I hope that this detailed explanation will help clarify the situation and demonstrate my good - faith efforts to resolve these matters.

RELEVANT LEGAL CONSIDERATIONS

23.The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

24.With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

25.That includes a requirement that the party bringing the claim (the tenant in this case), establishs her claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

ANALYSIS

26.The primary question to be considered is whether the notice given by the landlord terminating the tenancy was given for valid reasons.

27.While Parliament has this year made changes to the notice provisions, at the time the termination notice was given, the version of section 51 of the

https://www.legislation.govt.nz/act/public/1986/0120/latest/DLM94278.html?src=qs

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RTA that applied, confirmed that a landlord could give 63 days notice, if the landlord or member of the landlord’s family was to move into the tenancy. That provision holds:

(1) A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if—

(a)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;

28. In reality, when considering reasons why the landlord did not move into the premises, the only time relevant is the 90 days after the tenancy terminated, which ended on 9 December 2024.

29.The position taken by the tenant, is that the owner did not intend moving into the premises, as demonstrated by the fact that she did not move into the dwelling.

30.On the other side of the ledger, the landlord’s position is that there was a tennis court to be built at the owner’s house, and the owner wished to move into the dwelling in the interim.

31. I have considered the extensive evidence provided by the landlord, and I am not persuaded by the landlord’s case, for these reasons.

32.Firstly, it is the case that when the termination provisions in the RTA were amended in 2021, parliament wanted to limit the circumstances when a tenancy may be terminated. Parliament did not wish tenancies to be terminated at the whim of a landlord, there needed to be specific and limited reasons.

33. I accept without reservation that the owner has for some time been planning on building a tennis court at her house. There is significant evidence on file proving that was the case. But when the tenancy was terminated and possession returned to the landlord, it was by no means certain when that could occur. The landlord had applied to the council for resource consent, which was not issued until 25 February 2025, well after the 90 day period, following termination of the tenancy ended. To put it another way, the landlord could not have commenced the tennis court build within that 90 day period. In fact, it would not have been until some 2 ½ months after that 90 day period ended, that works could have commenced.

34.But even when the resource consent was provided in late February, the landlord still did not move out of her house, which is unsupportive of any immediate need for alternate lodgings.

35.The landlord has further referred to medical issues arising for family members. Medical records have been provided in relation to those which I

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have considered, and while I will not outline those in this publicly available decision, I am not persuaded that those reasons are of such moment that the owner could not have moved.

36. In relation to the visa issues, I also find that reason convincing. The landlord must have known well in advance, the situation in relation to visas for her family, and so could have predicted what would have been needed in order to meet those requirements.

37. It is also the case, that after the tenant moved out, the landlord set about undertaking a range of improvements at the tenancy. As it turns out, the landlord could have given notice to end the tenancy on the grounds of wishing to undertake extensive alterations or refurbishment, or redevelopment, if it would not be reasonably practicable to do that work with the tenant living there. While I am not convinced that the tenant could not have lived there, while that work was being undertaken, the landlord would have needed to give 90 days’ notice to terminate on that basis (section 51(2)(f). So even if viewed from the lens of that provision, the notice was inadequate given the notice was only for 63 days.

38.For the above reasons, I conclude that the notice, given by the landlord was not valid, because the landlord did not meet the criteria in section 51(1)(a).

39.The tenant has claimed compensation for four weeks of rent, which is $5,800.00. I am not persuaded that there is sufficient evidence to support an order of that amount, because compensation is normally ordered to right a loss incurred by a party. I am not persuaded that the tenant has incurred losses equal to that sum.

40.However, undoubtedly the requirement to leave her home, has caused significant inconvenience and distress to the tenant, particularly in circumstances where she needed to leave her home without statutory authority. If I were to approach this as a claim for general damages, in the circumstances, I would conclude an order of some $3,000 would be reasonable.

41.As a cross-reference to that amount, I note that the tenant could have brought a claim under section 60AA, for exemplary damages for the landlord acting to terminate the tenancy knowing there were no lawful grounds to do so. In this case, the landlord has an agent, a professional property management company, which no doubt confirmed to the owner the necessary legal grounds in order to terminate the tenancy, or at the very least, should have challenged the owner on that. If I consider the maximum level of exemplary damages for section 60AA, that is $6,500.00. If I were to have considered a claim for that breach, the end result would’ve been an exemplary damages order around the $3,000.00 mark.

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42.When I step back and consider what a fair outcome would be. In this case, I have determined that an order of $3,000 should be made, to put right the landlord’s breach.

43.The landlord must also pay the tenant the filing fee as the tenant has been substantially successful in her claim.

[NAME] 17 April 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].