Tenant Wins Variation of Tenancy Due to Misrepresentation
📌 In brief
The Tenancy Tribunal changed a fixed-term tenancy to a periodic tenancy after the tenant proved that the landlord's agent had misled her about the inclusion of a garage in the tenancy agreement.
⚖️ Legal holding
A tenant is entitled to vary a tenancy agreement if it was induced by fraud or misrepresentation.
📖 What the law says
This section allows the Tenancy Tribunal to make various orders when dealing with a claim. These orders can include declaring the status of premises or agreements, defining the rights or obligations of parties, ordering a party to give possession of premises to another, or ordering a party to deliver specific items to another.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal varied a fixed-term tenancy to a periodic tenancy due to misleading information about a garage.
📜 Headnote Official document
The Tribunal varied a fixed-term tenancy to a periodic tenancy after finding that the landlord's agent had misled the tenant regarding the inclusion of a garage in the tenancy agreement.
📚 Full judgment Official document
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[2025] NZTT 5245372
TENANCY TRIBUNAL AT [Event location suppressed]
APPLICANT: [redacted]
Tenant
RESPONDENT: [redacted]
Landlord
[COMPANY] (removed)
Agent
TENANCY ADDRESS: 111 O'[ADDRESS], Pokeno, RD 1, Pokeno 2471
ORDER
1. An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
2. The tenancy of 111 O'[ADDRESS], Pokeno, RD 1, Pokeno 2471 between [the tenant] and [NAME] is varied from a fixed term tenancy to a periodic tenancy. All other terms of the tenancy remain unchanged.
3. For the avoidance of any doubt, the tenant’s right to make any other claims relating to the tenancy, including those relating to the use of the garage/separate dwelling on the property, is unaffected by this order.
Reasons:
1. Both parties attended the hearing which was conducted by telephone. The Tribunal also heard from [NAME] and [NAME] of [COMPANY] ([NAME]).
2. [NAME] were the agents acting for the landlord when the tenant viewed the premises, discussed and agreed the tenancy, and signed the tenancy
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agreement. The landlord has recently dismissed them as her agent. For that reason, and because the remedy that the tenant seeks does not affect the agent, I have removed them from the application.
3. The tenant seeks an order that her fixed term tenancy agreement be varied to become a periodic tenancy. The ground for her application is that the [NAME], on behalf of the landlord, misled her regarding the separate garage on the property. She says that she was led to understand that the garage was part of the tenancy, and it was only after she had agreed the tenancy and given notice to her then landlord, that [NAME] informed her that the garage was not part of the tenancy and that the landlord intended converting it to a separate dwelling and putting tenants in it.
4. The landlord agrees that the agent misled the tenant over the garage and says that the agent also misled her.
5. Having heard from [NAME] and [NAME], I am satisfied that the agent did mislead the tenant regarding the garage. They denied it, but I found their evidence to be unconvincing and inconsistent with reality. [NAME] said that there was no garage, only a “shape”. In other words, that the tenant had no reason to assume that there was a garage.
6. The tenant said that the tenancy was advertised with a garage, and I accept that. As well, the structure looks like a garage from the outside and it would be reasonable to assume that it is a garage. In any case, garage or not, I am satisfied that the tenant was led to believe that it was included in the tenancy, and she had no reason to think that it would be occupied as a separate dwelling only a few meters away from the main house.
7. Section 78(1)(g) of the Residential Tenancies Act 1986 provides that the Tribunal may make the following order, “where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part)”
8. I find that the agent, on behalf of the landlord, induced the tenant to enter the tenancy agreement by misrepresenting the nature of the garage, its intended use, and the fact that it was not to be included in the tenancy. The tenant was made aware of the true position before she signed the tenancy agreement but by then she had given notice to terminate her then tenancy and she was committed to taking the tenancy.
9. The prospect of having strangers occupying the garage or separate dwelling next door to the main house very reasonably is of concern to the tenant and she may be very well not be comfortable continuing with the tenancy in those circumstances. Therefore, it is appropriate to make an order to convert the
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tenancy to periodic so that the tenant can give 21 days notice to terminate it at any time.
10. The tenant has referred in her application to some other concerns regarding the tenancy, such as a fireplace very near to a wooden wall and some of the landlord’s belonging left at the premises. There was no supporting evidence in relation to those things and the application seeks only a variation of the tenancy agreement. Any claims relating to them will therefore have to be brought by way of another application.
11. I note also that the landlord should consider very carefully whether it is lawful for the converted garage to be occupied as a separate dwelling. Indications are that it has consent to be used as a sleep out. It may be that its occupation is limited to people associated with the occupants of the main house. The landlord will need to confirm the position with the relevant authorities.
12. The tenant did not seek payment of the filing fee.
13. The tenant has succeeded and so I have granted her request for name suppression.
R Armstrong 20 May 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 [NAME] 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 was misled about the inclusion of the garage in the tenancy agreement.
- The agent misrepresented the nature and intended use of the garage to the tenant.
- The tenant reasonably believed the garage was included in the tenancy based on the advertisement and appearance of the property.
- The prospect of strangers occupying the garage next to the main house was a valid concern for the tenant.
- The landlord agreed that the agent misled the tenant regarding the garage.
❌ Tends to be rejected
- The tenant's concerns about a fireplace near a wooden wall and some of the landlord's belongings left at the premises were not supported by evidence.
- The tenant did not seek payment of the filing fee, which was not directly related to the variation of the tenancy agreement.
- The tenant did not bring forward any new evidence regarding the original application after the hearing.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tribunal varied the fixed-term tenancy to a periodic tenancy.
What was the dispute about?
The tenant claimed that the landlord's agent misled her about the inclusion of a garage in the tenancy agreement.
How did the court decide, and why?
The court decided to vary the tenancy agreement because the agent's misrepresentation induced the tenant to enter into the agreement.
Which laws or rules were applied?
Section 78(1)(g) of the Residential Tenancies Act 1986 was applied.
What was the argument that mattered most?
The tenant argued that she was misled about the inclusion of a garage in the tenancy agreement.
Was the decision for or against the person who brought the case?
The decision was for the tenant.
What does this mean for someone in a similar situation?
Someone in a similar situation might be able to vary their tenancy agreement if they can prove they were misled by the landlord's agent.
What evidence or documents mattered?
The judgment does not specify the exact evidence or documents that mattered.