retaliatory notice
📖 What is retaliatory notice? Meaning and definition
In New Zealand tenancy law, a retaliatory notice refers to a situation where a landlord attempts to terminate a tenancy because the tenant has either exercised, or proposed to exercise, a right, power, authority, or remedy available to them under their tenancy agreement, the Residential Tenancies Act 1986, or any other relevant Act. It also applies if the landlord's motivation stems from a complaint the tenant has made against them relating to the tenancy.
The Tenancy Tribunal has the power to declare such a termination notice to be retaliatory, and if it does, the notice becomes legally ineffective. This means the tenancy would not end based on that particular notice. The purpose of this provision is to protect tenants from unfair eviction when they are asserting their legitimate rights or raising concerns about their living situation.
Giving a termination notice that is subsequently declared retaliatory by the Tribunal is considered an unlawful act. For such unlawful acts, the Tribunal may award exemplary damages to the tenant. These damages can be significant, with a maximum of $6,500.00, especially if the landlord's unlawful act was intentional. The Tribunal considers the landlord's intent and the effect of their actions when deciding whether to award exemplary damages.
To challenge a notice as retaliatory, a tenant must apply to the Tenancy Tribunal within 28 working days of receiving the notice. The burden of proof lies with the tenant to provide sufficient evidence to convince the Tribunal that the landlord's motivation was indeed retaliatory. If the tenant fails to provide the necessary evidence, their claim may be dismissed.
📋 Requirements
- The landlord gave a notice terminating the tenancy.
- The tenant applied to the Tenancy Tribunal within 28 working days of receiving the notice.
- The landlord was motivated wholly or partly by the tenant exercising or proposing to exercise a right, power, authority, or remedy conferred by the tenancy agreement or any Act.
- The landlord was motivated wholly or partly by a complaint made by the tenant against the landlord relating to the tenancy.
📝 Procedure
- The tenant receives a notice terminating their tenancy.
- Within 28 working days of receiving the notice, the tenant applies to the Tenancy Tribunal.
- The tenant claims the notice is retaliatory, providing evidence to support their claim.
- The Tenancy Tribunal hears from both the tenant and the landlord.
- The Tribunal determines if the landlord's motivation for giving the notice was retaliatory.
- If declared retaliatory, the notice is of no effect, and exemplary damages may be awarded.
💡 Examples
- A tenant receives a 28-day notice to end their boarding house tenancy the day after a verbal disagreement with the property manager, leading the tenant to believe the notice was retaliatory.
- A landlord gives a termination notice shortly after a tenant complains about necessary repairs not being done, and the tenant believes this is why they are being asked to leave.
- A tenant claims exemplary damages because they believe the landlord intentionally issued a termination notice in response to the tenant exercising their right to challenge an unfair rent increase.
📚 Legal basis
- Residential Tenancies Act 1986
❓ Frequently asked questions
What happens if a notice is declared retaliatory?
If the Tenancy Tribunal declares a termination notice to be retaliatory, it becomes 'of no effect,' meaning the tenancy will not end based on that notice. The landlord's attempt to terminate the tenancy is invalidated.
Can I get compensation if my landlord gives a retaliatory notice?
Yes, giving a retaliatory notice is an unlawful act. The Tenancy Tribunal may award exemplary damages to the tenant, up to a maximum of $6,500.00, especially if the landlord acted intentionally.
How long do I have to challenge a retaliatory notice?
You must apply to the Tenancy Tribunal within 28 working days after you receive the notice terminating your tenancy. Missing this deadline could mean your claim is dismissed.
What kind of evidence do I need to prove a notice is retaliatory?
You would need to provide evidence showing that your landlord's motivation for giving the notice was linked to you exercising a right or making a complaint. This could include dates of complaints, communications with the landlord, or details of any disputes leading up to the notice.
Does a retaliatory notice apply to all types of tenancies?
The Residential Tenancies Act 1986 covers most residential tenancies, including boarding house tenancies, and the provisions for retaliatory notices apply to these. The specific requirements for notice periods might differ slightly between tenancy types.
What if the landlord has another reason for giving notice?
The law states that if the landlord was motivated 'wholly or partly' by the tenant's actions, the notice can be declared retaliatory. Even if there are other reasons, if a retaliatory motive is present, the notice may still be challenged.