What was the outcome of Tenancy Tribunal case 4598800?

The tribunal order states: The tenants application has not been established, so is dismissed.

How much money was awarded in case 4598800?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4598800?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4598800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9565673-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4598800?

The tribunal order states: The tenants application has not been established, so is dismissed.

How much money was awarded in case 4598800?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4598800?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 4598800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9565673-Tenancy_Tribunal_Order.pdf.

7A Titoki Avenue, Mangere Bridge, Auckland 2022 Tenancy Tribunal Case 4598800 — Mould & damp

Order

The tenants application has not been established, so is dismissed.

Reasons

The Tribunal must consider an application filed by the tenants against the landlord. The application relates to a claim that the landlord did not have genuine and valid grounds to terminate the tenancy.
Both parties appeared at the hearing. The landlord attended by telephone from China, but his agent, Gralin Property Management was appeared in person. Both tenants were present.

BACKGROUND

The parties entered into a fixed term tenancy agreement for a one year fixed term tenancy commencing on 17 May 2018. The tenancy subsequently rolled into a periodic tenancy, which means that it can be terminated by notice from either the landlord or tenant.
The tenancy agreement records the landlord as Miao Miao, care of an agent, Gralin Property Management Limited.
An email provided to the Tribunal dated 13 January 2023, from Victor Miao to Gralin Property Management, records Hi Jack I will sell my property of 7 & 7a Titoki Ave, Mangere bridge. Please sent the 90 day notice to both tenants and say thanks to them <f\jcq/:hx<
That same day Gralin Property Management issued a 90 day notice to the tenants ending the tenancy. The notice states: We regret to inform you that the owner wishes to reclaim possession of the rental dwelling for the purpose of putting it on the market for sale.
The notice then gave the tenants 90 days’ notice, the final date of the tenancy then being 16 April 2023.
The tenancy ended on the basis of that notice, and possession was returned to the landlord.
It is also relevant to note that when the tenancy ended, so did the relationship between Gralin Property Management and the landlord.
On 8 June 2023 the tenants filed this application with the Tenancy Tribunal.
On 23 June 2023 Gralin Property Management emailed the owner noting that the tenants had filed the application with the Tribunal, asking the landlord to explain what happened after the tenants had moved out.
When no reply was received from the 23 June 2023 email, Gralin Property Management sent a reminded to the landlord on 28 June 2023. The landlord responded that same day: I am so sorry to hear that the previous tentants put me on tribunal. after reading your email I understand why they need explanation and I am happy to tell them. firstly, please send my regards to the previous tenants and thanks for the good care of my property in last 3 years. as you know, in last 3 years we all been to the virus and which damage the whole world economy so badly. I went back to China in early 2020 running the business and because of the virus whih lead to a preaty bad result in my business. In last Dec, becase both China and NZ open the border then I could back to Auckland to see my parents and kids. I found that the mortgage rate has already nearly 2 times higher than my exsisting home loan rate which I could not afford to pay in my current financial situation. In the middle of Jananury, I decides to sell the rental property to get better cash flow to get through this bad period otherwise I may lost all my investment in China, then I let you to notice the tenents to leave. after that I start to source the potential buyer, in the beginning of April, my China business parter introuduced a friend of him to negotiate the offer. according the GV, the rental property probably worth about 1.5 mil, so we start the price from 1.5mil. however buyer ask me to renovate the property to a better condition and put 20 working days finance condition on it. after tenants leaving I start the renovation and it cost me NZ $22,000 to finish it. but after 20 working days, the potencial buyter rang me and told me that according to the China goverment policy that he could not transfer that large amount of money overseas and he could not fit the NZ lending cretiaria to get the loan from NZ either. Because of the large amount of mortgage payment I have to put the rental property on the market to help the mortgage cash flow, this is the reason why the previous tenants may see the advertisement on the market, however the current rent is $1150/w in total and which is less than $200/w higher than before ($960/w in total before). I need to take over 2 years to recover the renovation fee. <f\jcq/:hx< Comparing to the current interests rate my rental reture ever less the before. So please explain to the judge and tenants that I am not let them go on purpose but only because my personal financail situation. Everybody all have their own good time and bad time. During this 3 years virus time I did not increse any single cents because I understand that everyone include myself need help and have to get through the bad time ourselves. I will send you the new tennancy agreement to you but I am currently in Zhe Jiang Province and need 15-20 days to get back to Yunnan (my home town) to get the sales and purchase agreement (offer) which is not in time. please send my sincerely appology to the previous tenants and wish them all the best in the future, also appreciate your years great help
On 30 June 2023 Gralin Property Management wrote to the landlord seeking further information, including asking why the landlord did not put the property on the general market which would have attracted more potential buyers.
The landlord responded on 19 July 2023: regarding your question: Why I decided to go for private sale rather than put house on the market for sale, put the house on the market may attract more buyers? I remember in the middle of Feb, I went to meet one of my friends who is real estate agent to get some basic idea about my property, he said my property may sale around the CV value, however I have to spend quite a bit money on the renovation , he also suggested to cut the tree and making a new fence between the 2 houses and paint the roofs for both houses etc. He told me if he could sell the property for 1.5 mil then I need to pay the commission around $40,000 and during the marketing time I need to pay the marketing fee and staging fee. In total I need to prepare around $80k which is impossible at that time . However I understand I have to spend some money on renovation because the property condition is not good for selling. I spend quite a few weeks to contact different builders to get the quotation and at that time Auckland just after the big flooding and could find no one to take the job immediately. But finally I found a Chinese builder team could do it and the time frame fitting the tenants move out date, (they started the renovation about 10 days after tenants leaving actually) During the waiting time, my current Chinese business partner introduced a potential buyer to me who is New Zealand PR but running business in China serval years and plan to buy a investment property in Auckland. I had serval meetings with them in China, also I made a promise that I will do the renovation before settlement. The potential buyer seems quite like the property and satisfied with all the answer and suggestions I provide so we had a offer in the end of Apr (with 20 working days Due Diligence contion). As you know from Jan to Apr there were several times interest rate increase and which made the real estate market quieter and quiater. However, by the due date , I got the bad news from the potential buyer that according the current Chinese goverment regulation they could not T/T transfer that amount of money (50% of purchase price) to overseas and they were not fit the NZ banks overseas income buyer lending policy. I got no choice but to rent out the property again to help with the mortgage because the mortgage payment doubled than before. The rental manager put a higher rent on the ads but I have no time to wait so I chose the lower offer but they could moved in within 1 weeks. I have attached the original S&P offer and the rental agreement. As I said everybody do have their own down time, put ourselves in their shoes, try to understand them always better than question them. Am I right? I think the tenants could understand me after my explaination.

TENANTS CASE

The tenants state that they received initially a telephone call stating that the owner wanted to sell the home, and that was later followed up by email. The tenants state they were advised there were financial issues for the landlord. The tenants say they asked what the price was for the premises because they were interested in purchasing it. However ultimately they moved out, but subsequently the tenants say they were advised by the neighbour that a ‘for rent’ sign had been put up, this notification was on 29 May 2023. The tenants dispute that the termination notice was genuine.
The tenants question whether there is evidence that the offer from the person in China was genuine, given there is only the statement of the owner that this is the case.
The tenants state that the property was improved so a higher rental could be received (this submission was made prior to receiving the landlord documents and photographs as below).
The tenants set out the toll this issue has had on them including health related effects, and further that the stress has caused them to separate.
In their concluding submissions, the tenants noted that the photographs provided by the landlord during the hearing, is not of their tenancy it was the front dwelling (which I understand was also owned by the landlord), and they question whether the landlord had in fact done the renovations claimed based on the photographs. The tenants state that the premises were in poor order, it was cold, there were electrical issues and it was damp. The tenants state “there was many things wrong with that place”.
The tenants confirmed that the rent was not raised during the tenancy, if anything they say that it should have been decreased. The tenants accept however that the rent they were paying was “very cheap rent”.

LANDLORDS CASE

Mr Young who attended from Gralin Property Management deferred to the landlord who was attending by phone.
Mr Miao advised that the was in China at the time the decisions around termination were made, and a friend of his who was a Real Estate agent later told him the fees would be around $40,000 to sell it on the open market, so he went and found a private buyer in China. There was a 20 day finance condition, and because of the regulations in China the deposit could not be paid so the sale fell over. Because of his financial situation he could not leave the property vacant so decided to re-rent the premises.
The landlord states that he spent $22,000 on the renovation, and that the new rental for the premises was only $200 per week above what the applicants were paying.
The landlord states that during the tenancy he did not increase the rental.
I noted to landlord that no contemporaneous documentation had been provided supporting that there was an overseas buyer. At that stage Mr Young produced various emails and other documents. I will discuss those further below.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant, that is the tenant in this case), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

ANALYSIS

The RTA confirms that there are only limited grounds upon which a landlord can terminate a tenancy. Section 51 of the RTA sets out the grounds for termination by notice, and that includes at subsection 2(a) if: The premises are to be put on the market by the owner within 90 days after the termination date for the purposes of the sale or other disposition.
The question I must consider, boils down to whether I consider the termination was genuine, and whether the termination complies with the above provision. Having considered the evidence available to me, I am satisfied that the termination was given for valid and lawful grounds.
The law does allow the landlord to give notice to terminate the tenancy if they were to put the premises on the market within 90 days of the termination. I don’t see any reason why the landlord could not put the premises on the market sooner, providing it was put on the market no later than 90 days of the tenancy ending.
In this case the landlord states that the premises were in fact put on the market, and in particular an offer for the sale of the premises had been made and accepted by a buyer in China. The term ‘on the market’ is not defined in the RTA, but can be taken to mean offered up for sale. The property could be put on the market by listing it with a real estate agent, or by way of a private sale, which the landlord states is the case here. The fact the sale fell through does not mean it was not ‘on the market’.
I can understand the concerns from the tenants, that the reasons for the termination were not genuine, and as the tenants noted at the hearing the only information provided to date was effectively statements from the landlord.
However during the hearing the tenants and Tribunal were provided with additional documents, that includes the following which do support the private sale as the landlord describes: a. An email with a New Zealand based solicitor from 20 October 2023, in which the solicitor does not dispute or challenge the email from the landlord around the intended sale of the property. b. An email from Leo Chen, a real estate agent with Barfoot & Thompson in which the author states: This email is to confirm that you rang me in Feb regarding selling your rental property in Mangere Bridge. ... I gave you a follow up call in March, then you told me you would like to do the private sale instead because of you do not have $40 - $50k to invest up front and you got an overseas potential buyer already. c. Bank records recording the transfer of some $22,000, in May 2023 for ‘decorations’.
In my assessment, those documents are independent support for what the landlord states.
The tenants questioned whether the termination was just designed to get them out of the tenancy so the landlord could re-rent the premises for more rental. The problem with that submission, is that if the landlord simply wanted a higher level of rental, he could simply have increased the tenants rent. He did not need to start a new tenancy to do that.
For the above reasons, I find that it is more likely than not that the termination notice was given for genuine and valid reasons, it was lawful, so this claim before the Tribunal must be dismissed.

Tenancy Tribunal case 4598800 — Mould & damp at 7A Titoki Avenue, Mangere Bridge, Auckland 2022

At a glance

Tenancy Tribunal case 4598800 — Mould & damp at 7A Titoki Avenue, Mangere Bridge, Auckland 2022

At a glance

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

TENANTS CASE

LANDLORDS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions