What was the outcome of Tenancy Tribunal case 4610889?

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

How much money was awarded in case 4610889?

Verified claim lines are listed on this page.

Where can I read the official tribunal order for case 4610889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9207293-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4610889?

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

How much money was awarded in case 4610889?

Verified claim lines are listed on this page.

Where can I read the official tribunal order for case 4610889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9207293-Tenancy_Tribunal_Order.pdf.

Unit 8, 114 Maunu Road, Woodhill, Whangarei 0110 Tenancy Tribunal Case 4610889 — Leaks

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
By declaration, the termination notice dated 24 May 2023 is of no effect.
Thuoc Say and Pharat Pheng as trustees of the PTS Family Trust must pay Julian Scott $20.44 immediately, being the filing fee for this application.

Reasons

Background

The property at 114 Maunu Road is a set of 8 adjoining units.
Mr Scott lives in unit 8, and his nephew Mr Jamie Lloyd lives in unit 7. Mr Lloyd has intellectual disabilities and Mr Scott is his caregiver.
Mr Scott has lived in unit 8 since 2014. His tenancy agreement was with L H Hooker Whangarei as agents for the then owner, Mr Lattimer.
Mr Lattimer sold the property approximately eight years ago.
The current owners live in Australia. Ms Hokimate Lemon acts as a local caretaker / point of contact for the owners.
On 22 March 2023, Mr Scott and Mr Lloyd issued a joint breach notice to the landlord. The comprehensive 8-page notice raises the following issues: a. Repairs, particularly in respect of Mr Lloyd’s unit. b. Maintenance of the common area ‘garden’. c. Calculation of water rates. d. Breach of quiet enjoyment (mostly relating to the behaviour of another tenant).
Ms Lemon arranged for repairs to be done on Mr Lloyd’s unit, and some work was carried out on the garden.
On 24 May, the landlord issued a notice of termination to Mr Scott and Mr Lloyd.
The stated grounds for termination is that the landlord intends to carry out extensive alterations, refurbishment, repairs or redevelopment of the premises 1 .
Mr Scott and Mr Lloyd have both brought applications seeking an order setting aside the termination notices. 2
The applications were heard together in Whangarei on 21 July 2023. Mr Scott attended the hearing and represented Mr Lloyd. Ms Lemon represented the landlords. Findings – termination notices
The law relating to termination of periodic tenancies by notice changed in February 2021.
Previously, landlords could terminate a periodic tenancy at any time by issuing a 90-day notice. Landlords did not have provide a reason for termination.
Since February 2021, landlords can only terminate a tenancy by notice for specific reasons.
One of those reasons is if: a. Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord; and b. It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and c. The work is to begin within 90 days after the termination date.
Mr Scott submitted that: 1 Section 51(2)(f) Residential Tenancies Act 1986 (“RTA”). 2 Application 4611029 a. His unit is in generally good condition. b. Some repairs were required in Mr Lloyd’s unit, as set out in his breach notice. However, most of that work had been done by the time that the termination notice was issued. c. If the landlord requires access to his unit for a period of time to carry out renovations / redevelopment, he can move in with Mr Lloyd (and vice versa).
Ms Lemon submitted that: a. The owners have the property on the market for sale. b. They have been advised by real estate agents that they will need to carry out work on the property to achieve the sale price that they want. c. She has been instructed by the owners to investigate replacing the flooring in all of the units, possibly re-roofing the units, and painting the units inside and out. d. Ms Lemon submitted that she has booked a flooring company to measure the units with a view to obtaining a quote. She has not yet obtained a roofing assessment or quote. The units were last painted in approximately 2013. She has not obtained an estimate for re-painting. e. To date only units 7 and 8 have received notice of termination.
Mr Scott’s application requires the Tribunal to determine whether the reason given for the termination of his and Mr Lloyd’s tenancy is genuine.
There is an inherent difficulty in that because the question is about future action by the landlord that may take place up to 90-days after the date of termination of the tenancy.
However, a landlord cannot use the mere possibility of future development work as a reason for termination. When the notice is given, there must be a sufficiently clear plan that evinces a genuine intention to carry out work. The planned work must meet the criteria of section 51(2)(f), that: a. The work is “extensive”; and b. It is not reasonably practicable for the work to be done with the tenant in occupation; and c. The work is to begin within 90-days after the date of termination.
In this instance, the information provided by the landlord does not a plan or course of action that is clear enough to establish that the landlord intends to carry out extensive renovations or alterations on these two units.
Ms Lemon talked about three possible areas of repair / renovation work – flooring, roofing, and painting.
The landlord has not obtained a roof assessment / report. Ms Lemon mentioned that there were possible leak issues in two of the eight units. The nature and extent of the problem is not known. The general condition of the roof is not known.
The landlord is at the very early stage of obtaining a quote for flooring. Ms Lemon did not indicate that the owners had made a decision to re-floor all of the units, only that they were seeking a quote.
The property was last painted nearly ten years ago, so I accept that there is a need for this work. However, substantial parts of Mr Lloyd’s unit were painted when the landlord carried out remedial work in response to Mr Scott’s breach notice. It is possible to do the painting with the tenants in situ.
It is also puzzling that the landlord has only issued termination notices to Mr Lloyd and Mr Scott. Ms Lemon submitted that it is because the landlords intend to stage the work, beginning with those units, but the argument is not persuasive given that it is still very unclear what work will be done.
My finding is that the landlords have not established, to the standard of more likely than not, that they intend to carry out extensive alterations, refurbishments, or repairs on these units.
Therefore, the landlords did not have grounds to issue termination notices to Mr Scott and Mr Lloyd.
The Tribunal may make an order an order in the nature of a declaration as to the rights an obligations of any party 3 .
By declaration, the termination notices dated 22 March 2023 are invalid and of no effect. The tenancies of Mr Lloyd and Mr Scott will not terminate pursuant to those notices. The tenancies will continue until they are lawfully terminated. Noted – common area / garden
At the hearing Mr Scott sought clarification as to the obligations of the landlord in respect of the gardens.
Each unit has a small grassed area at the rear. There is a partition wall between each unit.
Responsibility for the upkeep of this ‘garden’ area, as far as the partition wall, falls to the tenant, unless the tenancy agreement provides otherwise.
Past the partitions there is a grassed area, then bush / trees to a creek. The legal boundary of the property extends to the opposite side of the creek. 3 Section 78(1)(a) RTA
This area is common area. It is for the use and enjoyment of all the tenants, but not for the exclusive use of any tenant.
The landlord is responsible for the upkeep of this area.
Mr Scott submitted that the previous owner used to maintain this area, but no work has been done since the new owners purchased the property approximately 8 years ago. As a consequence, this area is very overgrown.
The landlord is responsible for the upkeep of this area. Mr Scott is entitled to require the landlord to restore it to a “reasonably tidy” condition.
Having regard to the extent that it is now overgrown, the landlord must be allowed a reasonable period of time to attend to this.
If the landlord does not, Mr Scott may bring a further application seeking work orders and / or compensation. Filing fee
Mr Scott has been successful in this application, and I must award him the filing fee of $20.44.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
By declaration, the termination notice dated 24 May 2023 is of no effect.
Thuoc Say and Pharat Pheng as trustees of the PTS Family Trust must pay Julian Scott $20.44 immediately, being the filing fee for this application.

Reasons

Background

The property at 114 Maunu Road is a set of 8 adjoining units.
Mr Scott lives in unit 8, and his nephew Mr Jamie Lloyd lives in unit 7. Mr Lloyd has intellectual disabilities and Mr Scott is his caregiver.
Mr Scott has lived in unit 8 since 2014. His tenancy agreement was with L H Hooker Whangarei as agents for the then owner, Mr Lattimer.
Mr Lattimer sold the property approximately eight years ago.
The current owners live in Australia. Ms Hokimate Lemon acts as a local caretaker / point of contact for the owners.
On 22 March 2023, Mr Scott and Mr Lloyd issued a joint breach notice to the landlord. The comprehensive 8-page notice raises the following issues: a. Repairs, particularly in respect of Mr Lloyd’s unit. b. Maintenance of the common area ‘garden’. c. Calculation of water rates. d. Breach of quiet enjoyment (mostly relating to the behaviour of another tenant).
Ms Lemon arranged for repairs to be done on Mr Lloyd’s unit, and some work was carried out on the garden.
On 24 May, the landlord issued a notice of termination to Mr Scott and Mr Lloyd.
The stated grounds for termination is that the landlord intends to carry out extensive alterations, refurbishment, repairs or redevelopment of the premises 1 .
Mr Scott and Mr Lloyd have both brought applications seeking an order setting aside the termination notices. 2
The applications were heard together in Whangarei on 21 July 2023. Mr Scott attended the hearing and represented Mr Lloyd. Ms Lemon represented the landlords. Findings – termination notices
The law relating to termination of periodic tenancies by notice changed in February 2021.
Previously, landlords could terminate a periodic tenancy at any time by issuing a 90-day notice. Landlords did not have provide a reason for termination.
Since February 2021, landlords can only terminate a tenancy by notice for specific reasons.
One of those reasons is if: a. Extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord; and b. It would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and c. The work is to begin within 90 days after the termination date.
Mr Scott submitted that: 1 Section 51(2)(f) Residential Tenancies Act 1986 (“RTA”). 2 Application 4611029 a. His unit is in generally good condition. b. Some repairs were required in Mr Lloyd’s unit, as set out in his breach notice. However, most of that work had been done by the time that the termination notice was issued. c. If the landlord requires access to his unit for a period of time to carry out renovations / redevelopment, he can move in with Mr Lloyd (and vice versa).
Ms Lemon submitted that: a. The owners have the property on the market for sale. b. They have been advised by real estate agents that they will need to carry out work on the property to achieve the sale price that they want. c. She has been instructed by the owners to investigate replacing the flooring in all of the units, possibly re-roofing the units, and painting the units inside and out. d. Ms Lemon submitted that she has booked a flooring company to measure the units with a view to obtaining a quote. She has not yet obtained a roofing assessment or quote. The units were last painted in approximately 2013. She has not obtained an estimate for re-painting. e. To date only units 7 and 8 have received notice of termination.
Mr Scott’s application requires the Tribunal to determine whether the reason given for the termination of his and Mr Lloyd’s tenancy is genuine.
There is an inherent difficulty in that because the question is about future action by the landlord that may take place up to 90-days after the date of termination of the tenancy.
However, a landlord cannot use the mere possibility of future development work as a reason for termination. When the notice is given, there must be a sufficiently clear plan that evinces a genuine intention to carry out work. The planned work must meet the criteria of section 51(2)(f), that: a. The work is “extensive”; and b. It is not reasonably practicable for the work to be done with the tenant in occupation; and c. The work is to begin within 90-days after the date of termination.
In this instance, the information provided by the landlord does not a plan or course of action that is clear enough to establish that the landlord intends to carry out extensive renovations or alterations on these two units.
Ms Lemon talked about three possible areas of repair / renovation work – flooring, roofing, and painting.
The landlord has not obtained a roof assessment / report. Ms Lemon mentioned that there were possible leak issues in two of the eight units. The nature and extent of the problem is not known. The general condition of the roof is not known.
The landlord is at the very early stage of obtaining a quote for flooring. Ms Lemon did not indicate that the owners had made a decision to re-floor all of the units, only that they were seeking a quote.
The property was last painted nearly ten years ago, so I accept that there is a need for this work. However, substantial parts of Mr Lloyd’s unit were painted when the landlord carried out remedial work in response to Mr Scott’s breach notice. It is possible to do the painting with the tenants in situ.
It is also puzzling that the landlord has only issued termination notices to Mr Lloyd and Mr Scott. Ms Lemon submitted that it is because the landlords intend to stage the work, beginning with those units, but the argument is not persuasive given that it is still very unclear what work will be done.
My finding is that the landlords have not established, to the standard of more likely than not, that they intend to carry out extensive alterations, refurbishments, or repairs on these units.
Therefore, the landlords did not have grounds to issue termination notices to Mr Scott and Mr Lloyd.
The Tribunal may make an order an order in the nature of a declaration as to the rights an obligations of any party 3 .
By declaration, the termination notices dated 22 March 2023 are invalid and of no effect. The tenancies of Mr Lloyd and Mr Scott will not terminate pursuant to those notices. The tenancies will continue until they are lawfully terminated. Noted – common area / garden
At the hearing Mr Scott sought clarification as to the obligations of the landlord in respect of the gardens.
Each unit has a small grassed area at the rear. There is a partition wall between each unit.
Responsibility for the upkeep of this ‘garden’ area, as far as the partition wall, falls to the tenant, unless the tenancy agreement provides otherwise.
Past the partitions there is a grassed area, then bush / trees to a creek. The legal boundary of the property extends to the opposite side of the creek. 3 Section 78(1)(a) RTA
This area is common area. It is for the use and enjoyment of all the tenants, but not for the exclusive use of any tenant.
The landlord is responsible for the upkeep of this area.
Mr Scott submitted that the previous owner used to maintain this area, but no work has been done since the new owners purchased the property approximately 8 years ago. As a consequence, this area is very overgrown.
The landlord is responsible for the upkeep of this area. Mr Scott is entitled to require the landlord to restore it to a “reasonably tidy” condition.
Having regard to the extent that it is now overgrown, the landlord must be allowed a reasonable period of time to attend to this.
If the landlord does not, Mr Scott may bring a further application seeking work orders and / or compensation. Filing fee
Mr Scott has been successful in this application, and I must award him the filing fee of $20.44.

Tenancy Tribunal case 4610889 — Leaks at Unit 8, 114 Maunu Road, Woodhill, Whangarei 0110

At a glance

Tenancy Tribunal case 4610889 — Leaks at Unit 8, 114 Maunu Road, Woodhill, Whangarei 0110

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions