What was the outcome of Tenancy Tribunal case 4570649?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4570649?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4570649?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4570649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9403549-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4570649?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4570649?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4570649?

The primary dispute was 14-day notice. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4570649?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9403549-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 353 Saint Aubyn, Moturoa, New Plymouth 4310 Tenancy Tribunal Case 4570649 — 14-day notice

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The tenant’s application is dismissed.

Reasons

Both parties attended the hearing. The landlord had a support person.
By way of a notice dated 12 April 2023 the landlord gave the tenant a notice to terminate the tenancy on 12 July 2023.
The tenant made his application to the Tribunal on 10 May 2023. The tenant claims the notice is retaliatory.
The tenant seeks compensation of $5,000 for stress and financial loss. Since making his application the tenant has moved out of the property. He gave his own notice to end the tenancy and moved out on 13 June 2023.
The onus of proving these claims rests with the applicant. The standard of proof required is on the balance of probabilities. Put another way, the applicant must persuade me that what they say is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not.
Where a party does not succeed with their claim, it does not necessarily mean they are wrong, but that there was insufficient evidence to prove their claim.
I must consider all the evidence presented including oral testimony and submissions. Certain types of evidence carry more weight, which must be considered when weighing all the evidence to decide what is more likely.
In the decision that follows, I may not have referred to all the oral testimony, other evidence, and the submissions made, but the parties should know it has been considered.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
The onus is on the tenant to establish that the landlord was wholly or partly motivated in giving the termination notice, by the tenant exercising his rights. Where the tenant has raised issues prior to service of the termination notice, there is a rebuttable presumption that the landlord was wholly or partly motivated by the tenant’s action and the onus shifts to the landlord to establish that they were not so motivated.
The tenant lived in the property for around 2 and a half years. The landlord lives in the front unit and the tenant lived in the back unit. The tenant owns a lawn mowing business and he says that throughout the tenancy, he would spend about 30-45 minutes a week water blasting his ride on mower and ute on a Friday or Saturday at reasonable time of day.
He says there was no problem until a noise complaint was made to the landlord by a neighbour about the water blasting. The tenant says he is not 100% sure but this complaint was made in early March 2023. The tenant says there was a second complaint. Again he was uncertain of the date. At the hearing he first said the complaint was a couple of days before the termination notice and later said that the complaint was about two weeks after the first complaint.
The tenant says that the landlord told him he had to stop water blasting. He says he told the landlord he was not going to stop – he had rented the property and was entitled to water blast and there was no prolonged or excessive noise. After the second complaint the tenant says he had gone to the Council who had told him he was not breaking the law.
The landlord says that she had intended to renovate the property and that she had a clear pathway showing her intention to refurbish prior to the complaints. She terminated to renovate the property. She considered that the work could not be done with the tenant in occupation. She says it was coincidental that the water blasting complaint occurred at this time.
The landlord says that the first complaint about the water blaster was mid- March and the second complaint on 7 April 2023.
The landlord says she spoke to the tenant about the second complaint on 9 April 2023. She says she viewed the complaints as ‘no big deal’. She says she did not tell the tenant he had to stop water blasting. She says she just wanted for him to think how he went about it. She says she was polite and respectful. She says that if she thought it was an issue she would have issued a 14 day notice to remedy. She thought she was having a friendly chat so that the neighbours could be considered.
On 12 April 2023 the landlord gave notice relying on s 51(2)(f) of the Residential Tenancies Act 1986 which allows a landlord to give 90 days’ notice to end a tenancy if extensive alterations, refurbishment, repairs, or redevelopment of the premises are 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 is undertaken; and the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
The landlord says she actioned the refurbishments at this time because she had been saving up for them and was ready. She provided a copy of a quote for blinds dated February 2022.
I heard oral witness evidence from the landlord’s painter. He also provided a written statement. His evidence is that that the landlord and painter had run into each other at the supermarket and discussed repairs. He says that a short time after that he visited the landlord at her home on 13 March 2023. He says he provided a quote for painting on that day. A copy of the quote was provided. He says he did not need to view the property to quote the work because the landlord’s house is the same - so he could use that, together with the landlord’s description of the damage that needed fixing to quote.
The landlord says that she knew that she had enough money to action the refurbishment after she had discussions with her accountant about her tax liability on 31 March 2023. Once she knew this, she knew how much money she had available and that she could afford the renovations.
The landlord provided me with detail of the work that was undertaken following the tenant leaving the property. This was started on 14 June 2023. The work undertaken included extensive re-painting of the interior of the property including walls, ceilings and doors, removing, installing a new shower and cleaning and remedying issues with the flooring and new window coverings. Analysis
The tenant’s application is dismissed.
I find that the landlord was not motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord when giving notice to terminate the tenancy. There is insufficient evidence to support this. This is because: a. There is conflicting evidence about what was said in relation to whether the tenant could water blast. There is insufficient evidence to support a finding that the landlord told the tenant he could not water blast. Given the tenant’s significant past water blasting activity I find it unlikely that the landlord told the tenant he could no longer water blast following the complaints. I am not satisfied that there was any conflict between the tenant and the landlord in relation to the tenant’s right to waterblast. This supports a finding that the motivation to terminate was not connected to the tenant’s assertion that he had a right to water blast. b. While there were two complaints about noise from water blasting made by a neighbour, and the tenant says he asserted that he could water blast, I accept that the landlord did not see this as a ‘big deal’ because the tenant had been water blasting in a similar way during the tenancy and the landlord did not have an issue with this previously. This supports a finding that the motivation to terminate was not connected to the tenant’s assertion that he had a right to water blast. c. I accept that the evidence presented by the landlord supports an intention to renovate that existed prior to the complaints. This supports a finding that the motivation was to renovate rather than the tenant’s assertion that he could water blast. I accept that the second complaint was made after the quote was obtained from the painter and after the landlord had spoken to her accountant about her tax liability (and therefore her level of savings allowing her to renovate). The tenant could not say with any specificity the date of the first complaint, and there is conflicting evidence on this. I prefer the landlord’s account that the first complaint occurred in mid-March (rather than early March) as this is consistent with the tenant’s account that the second complaint (which took place in April) occurred a couple of weeks after the first complaint. I therefore accept the landlord’s position that plans to start renovations were begun before the complaints. There is also the quote from 2022 showing a much earlier intention to undertake at least some renovations. d. Compelling evidence supporting the landlord’s position that the motivation to terminate was to renovate is that the landlord did, immediately after the end of the tenancy, undertake significant renovations.
The tenant expressed he felt it was not courteous that the landlord did not discuss her renovation plans with him. However, a landlord is not obliged to do that.
Finally, even if the tenant had established that the notice was retaliatory, I would have dismissed his claim for compensation.
This is because the tenant had no probative evidence of his financial loss. Further, the tenant gave notice to move out and did then move out on his own accord. A party must mitigate their loss. In this instance, that may have been done by issuing an application to the Tribunal to declare the notice to be of no effect, allowing the tenant to remain.
The tenant also claimed compensation for stress. Insufficient evidence was produced to support this, and, in any event, it is doubtful whether the Tribunal can make awards for stress. See Tenancy Tribunal decision [2021] NZTT [Event location suppressed] 4295464, 4287268 for a legal discussion of this issue. The Tribunal’s jurisdiction appears to be limited to making an award for costs and expenses directly flowing from an event, rather than for stress.
Neither party wanted me to consider name suppression so I have not done so.

Tenancy Tribunal case 4570649 — 14-day notice at Unit/Flat 2, 353 Saint Aubyn, Moturoa, New Plymouth 4310

At a glance

Tenancy Tribunal case 4570649 — 14-day notice at Unit/Flat 2, 353 Saint Aubyn, Moturoa, New Plymouth 4310

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions