Tenant's Claim for Unlawful Notice Dismissed

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[2025] NZTT 5051388, 5208459

TENANCY TRIBUNAL AT

APPLICANT/RESPONDENT: [redacted]

Tenant

RESPONDENTS/APPLICANTS: [redacted]

Landlord

TENANCY ADDRESS: [Street address suppressed] Milford, Auckland 0620

ORDER

1. The landlords’ names and identifying details, including the premises address, must not be published.

2. All claims are dismissed.

Reasons:

1. The parties attended the hearing in person.

2. [NAME] from [NAME] attended for the landlords. [NAME] attended as a Mandarin interpreter for the landlords.

3. [NAME] claims the landlords terminated the premises without proper grounds. She seeks orders for exemplary damages and compensation.

4. The landlords claim the tenant owes rent arrears.

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Background

5. The tenancy began on 21 September 2021 and ended over three years later on 2 October 2024.

6. On 9 September 2024, [NAME] emailed [NAME] that mould at the premises was a “never ending problem”. He son “is always sick with a cough and chest infection” as a result. She suggested that the landlord have the roof assessed and meeting at the property, “to discuss to sort a solution”.

7. The next day, [NAME] responded that the “owner thinks it will need a major maintenance and repairing of the house”. Her email went on to say:

It is not possible to carry out the work while you are still living inside. So she asked me to give you 90 days’ notice to termination our tenancy agreement…Also, you are a great tenant, I am happy to be your referrer…I will do my best to help you.

8. The following day, on 11 September 2024, [NAME] responded that she really did not want to move out and “I don’t think it’s a major repair” and:

I would appreciate the owner reconsidering.

9. The very next day, however, the tenant emailed [NAME] that she had found another home and asked to be released from the tenancy early, 20 days hence.

10. The landlords agreed to the tenant’s request to end the tenancy eight days early.

11. After the tenancy ended, the landlords had the garage roof replaced, the concrete tile roof of the main house water blasted, and the interior ceilings repainted.

12. The work took less than two weeks to complete, and the landlord readvertised the premises for rent on 14 October 2024, 12 days after the tenant moved out.

Did the landlords give the tenant notice knowing they were not entitled to?

13. The tenant believes the landlords’ grounds for issuing the notice were spurious.

14. [NAME] could not identify the landlord’s motive for giving her notice, but there is a suspicion the landlords may have been annoyed by her complaints about the persistent mould issues at the house.

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Legal principles

15. Landlords must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. In this regard, s 60AA of the Residential Tenancies Act 1986 (RTA) provides:

60AA Landlord acting to terminate tenancy without grounds

A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.

16. Breaching this provision without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.1

17. A notice infected with a desire to “get back” at the tenant for exercising their rights against the landlord will be bad for being retaliatory. A notice of termination given for only genuine and fair reasons will not be considered retaliatory.2

Landlords’ response

18. One of the landlords told the Tribunal that she was in Japan when the landlord contacted her about the tenant’s email suggesting the roof should be assessed. She says that she advised [NAME] to terminate the tenancy because she thought the roof would probably need significant work and she was concerned about the tenant’s son’s health. She was pleasantly surprised when her builder later advised that the roof only had to be water blasted.

19. The landlord says she was very happy with the tenant and would have rather not to have had to end the tenancy. Among other things, ending the tenancy would inevitably result in lost rental income while the premises was unoccupied. Indeed, the new tenancy after the work was completed, did not begin for over two months after the end of [NAME]’s tenancy.

1 Residential Tenancies Act 1986 (RTA), s 60AA and Schedule 1A . 2 For example, in Kerr v Woodman DC Porirua MA244/88, 3 November 1988, Judge Ongley upheld the Tribunal’s decision that a termination notice was not retaliatory. Judge Ongley was “quite satisfied that [NAME] acted reasonably on the basis of the information known to her…I am not called upon to decide whether the complaints were justified, only to decide whether [NAME] gave notice in retaliation or for genuine and fair reasons.”

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Discussion

20. The tenant bears the onus of proving that the landlords gave her notice knowing the grounds upon which it was given were invalid.

21. I found the landlords’ evidence for giving the 90-day notice plausible. Their narrative was rational and reasonable. They gave their evidence in a straightforward manner. They readily explained all of the circumstances that I sought clarification on.

22. The quick turn-around for the refurbishment work was explained by the unexpectedly smaller scope of the roof work.

23. There was no evidence that the landlords held any animus towards the tenant. They were very happy with her and would have preferred not to have ended the tenancy. They only did so because they thought the mould at the house could only be resolved by significant work.

24. On the other hand the evidence did not provide a credible narrative that the notice was given on spurious grounds. Both parties lost out. The tenant lost the house that she loved living in. The landlords lost a couple of months of rental income and a good tenant whom they liked.

25. Perhaps better communication might have resulted in a different outcome, as the landlords suggest. But that it is easy to speculate after the event.

26. Be that as it may, the tenant has not proved the facts upon which the claim depended on the balance of problem.

27. The outcome for this claim is that the Tribunal must dismiss it.

The rent arrears claim

28. The landlords decided not to pursue their rent arrears claim in consideration of the tenant not removing pavers she installed in the garden.

29. This claim is also dismissed.

Non-publication

30. The landlords ask the Tribunal to order non-publication of their names and identifying details.

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31. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

32. The landlords substantially succeeded in the proceedings by defending the unlawful notice claim. I do not consider that publication is in the public interest or is justified because of the landlords’ conduct or any other circumstances of the case.

33. The Tribunal grants the landlords’ application for non-publication.

[NAME] 26 March 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:

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