Tenancy Tribunal Rejects Landlord's Possession Order Application
📌 In brief
The Tenancy Tribunal dismissed the landlord's application for a possession order because the landlord did not provide enough evidence to prove their claim. The landlord failed to show that the planned renovations were extensive and would make it impractical for the tenant to stay during the work.
⚖️ Legal holding
A landlord must provide sufficient evidence to prove their claim on the balance of probabilities.
📖 What the law says
This section sets out the minimum notice periods a landlord must give to end a tenancy. For example, if the landlord needs the property for themselves or a family member, they must give 42 days' notice. Similarly, if the property is for an employee and this was stated in the tenancy agreement, 42 days' notice is required.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tenancy Tribunal dismissed the landlord's application for a possession order due to insufficient evidence.
📜 Headnote Official document
The Tenancy Tribunal dismissed the landlord's application for a possession order due to insufficient evidence proving the claim on the balance of probabilities. The landlord failed to provide details of extensive alterations planned, nor did they produce evidence of material steps taken towards those alterations.
📚 Full judgment Official document
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[2025] NZTT 5140629
TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA
APPLICANT: [redacted]
Landlord
RESPONDENT: [redacted]
Tenant
TENANCY ADDRESS: [ADDRESS], [POSTCODE]
ORDER
1. The landlord’s application for a possession order for the above tenancy is dismissed.
Reasons:
1. Both parties attended the hearing which was held by teleconference.
Burden of proof
2. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims on the balance of probabilities. That means the party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the burden of proof. Independent witnesses, corroborating documents and photographs are an important part of discharging the is burden.
3. As noted by the District Court in [NAME] ([NAME]) TT233/02, in practical terms this means that:
… [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the
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applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
4. If the claim is not established to the balance of probability, it must be dismissed.
The landlord’s claim
5. The landlord has sought to terminate the tenancy under section 51 of the Residential Tenancies Act, 1986 (the “RTA”) as it was at the time this application was filed.
6. This section was repealed and updated when the new version of the RTA took effect on 30 January 2025. However, the notices were served under the older version of the legislation, and as this application was filed on 21 January 2025, it must be dealt with under the legislation as it then was.
7. Under section 51(2)(f) of the RTA, a landlord could terminate a periodic tenancy by giving 90 days’ notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises were to be carried out by the landlord or owner, and it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken, and the work was to begin, or material steps towards it were to be taken, within 90 days after the termination date.
8. Under section 51(2)(f) of the Act, it is necessary to show that the alterations, refurbishment, repairs, or redevelopment of the premises, whichever is applicable, are “extensive”. This question must be considered in the context of whether it is reasonably practicable for the tenant to remain in occupation while the work is undertaken. Works that require the tenant to move out are, by their nature, likely to be extensive.
9. Taking a “material step” means applying for regulatory consent, seeking engineering or other professional advice, or taking any other significant step.
10. Each case will have to be determined on its particular facts and in light of the nature, extent, and effect of the intended work.
11. The landlord issued a 90-day notice under section 51(2)(f) in March 2024 and then a second notice under the same section in October 2024, but the tenant has not yet quit the tenancy.
12. The landlord is seeking a possession order for the property. The first step in getting a possession order is for the landlord to prove that their notice under section 51 of the RTA is a valid one.
13. The termination notice served by the landlord largely complies with the requirements of section 51(3) of the Act in as much as it is in writing, identifies the premises to which it relates, specifies the date by which the tenant must
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vacate, and gives the reasons for the termination. There is no signature on the letter given to the tenant.
14. The landlord (property manager) also produced a letter from the owner of the property instructing property manager to give the tenant notice to terminate the tenancy because they wish to renovate the premises.
15. Renovating a premises is not grounds under section 51 of the RTA to terminate a tenancy.
16. The landlord was unable to provide any information on what extensive alterations, refurbishment, repairs, or redevelopment of the premises are intended, such as would make it impractical for the tenant to remain at the property while they are undertaken. Nor was any information produced regarding any material steps that have been undertaken since the first 90-day notice was issued almost one year ago.
17. Today the landlord sought an adjournment to provide supporting information. However, today is the scheduled hearing date and an applicant is required to file all supporting documentation within five days of the hearing; this has not been done.
18. In my mind there is clearly a question as to what the landlord’s intention is, with regard to this property.
19. I consider the landlord has failed on the balance of probabilities to prove their 90-day notice to terminate is a valid notice. On this basis I decline to make a possession order in the landlord’s favour.
20. I note that in the hearing, the tenant stated she has found a place to move to and has every intention of moving out of her current address. The tenant stated she was unable to give a date when she would be moving out. Currently she is in the process of packing her belongings. The tenant stated she has recently had a car accident and this has hampered her efforts to move. It is possible this issue may be able to be resolved by both the tenant and the landlord engaging meaningfully with each other and possibly offering assistance.
[NAME]
28 February 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].
Reasons:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The tenant has found a place to move to and is in the process of packing her belongings.
- The landlord failed to provide sufficient evidence to prove the necessity of extensive renovations.
❌ Tends to be rejected
- The landlord issued two 90-day termination notices but did not provide adequate details about the planned extensive alterations.
- The landlord requested an adjournment to provide supporting information, but this request was denied because the deadline had passed.
- The landlord did not demonstrate that the proposed work would make it impractical for the tenant to remain in the property.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal dismissed the landlord's application for a possession order.
What was the dispute about?
The dispute was about whether the landlord could terminate the tenancy under section 51 of the Residential Tenancies Act 1986.
How did the court decide, and why?
The court decided to dismiss the landlord's application because the landlord did not provide sufficient evidence to prove that the planned renovations were extensive and would make it impractical for the tenant to remain in the property.
Which laws or rules were applied?
Section 51 of the Residential Tenancies Act 1986 was applied.
What was the argument that mattered most?
The argument that mattered most was that the landlord failed to provide sufficient evidence to prove their claim on the balance of probabilities.
Was the decision for or against the person who brought the case?
The decision was against the landlord who brought the case.
What does this mean for someone in a similar situation?
For someone in a similar situation, it means that they need to provide strong evidence to prove their claim on the balance of probabilities if they want to succeed in a similar application.
What evidence or documents mattered?
The judgment does not specify the exact evidence or documents that mattered, but it emphasised the need for independent witnesses, corroborating documents, and photographs.