What was the outcome of Tenancy Tribunal case 4664089?

The tribunal order states: The application for rent reduction is dismissed.

How much money was awarded in case 4664089?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4664089?

The dispute type was not classified.

Where can I read the official tribunal order for case 4664089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9501238-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4664089?

The tribunal order states: The application for rent reduction is dismissed.

How much money was awarded in case 4664089?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4664089?

The dispute type was not classified.

Where can I read the official tribunal order for case 4664089?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9501238-Tenancy_Tribunal_Order.pdf.

54 Tawhiri Road, One Tree Hill, Auckland 1061 Tenancy Tribunal Case 4664089 — Tenancy dispute

Order

The application for rent reduction is dismissed.

Reasons

Thomas Berry attended the hearing in person.
Samuel Carr and Lloyd Reardon attend for the landlord’s agent.
Mr Berry applies for a reduction of the weekly rent to a weekly rent amount in line with market rent for the premises. Background
New Zealander are experiencing what the media call a cost-of-living crisis. Inflation is higher than it has been in a decade and incomes are not necessarily keeping pace with increase. Food, power, petrol, and everything else are stretching everyone’s budgets.
The cost of rent is not immune. This application is made in this context of economic hardship.
54 Tawhiri Road is in desirable location on the lower southern slopes of One Tree Hill / Maungakieki, within about 100 metres of the southern edge of Cornwall Park. It is one house down Tawhiri Road from Campbell Road. Being higher up Tawhiri Road, closer to the park will naturally make the location more desirable than houses lower down.
The house’s floor plan is about 220m 2 . It has four bedrooms. There is a massive master bedroom upstairs with an ensuite, a large bedroom with an ensuite, a medium sized bedroom, and a small bedroom. There is a lounge, kitchen, and dining room. There is a north-facing deck that provides pleasant outdoor living one of the outdoor spaces flows well from the dining room. There is a sleep-out/office which while uninsulated, could be useful for working from home.
The house was built in 1952. It looks to be in the style of a two-storey bungalow. Inside, it has been modernised to a good level of specification. The house is in good condition and reasonably maintained overall, albeit there are things that require repair.
The tenancy began on 28 June 2020 at which time the rent was $1,200.00 per week. The rent was increased to $1,300.00 per week beginning 23 January 2021. On 18 August 2023, the landlord emailed the tenant a 60-day rent increase notice, increasing the rent to $1,400.00 per week with effect from 22 October 2023.
On 23 August 2023, the tenant filed this application challenging the rent increase. Legal principles
Sections 25(1) and (3) Residential Tenancies Act 1986 provide: (1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents...for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.
The tenant must satisfy the Tribunal that the rent exceeds market rent by a substantial amount. The term 'substantial' is not defined in the RTA, but it is the opposite of ‘minor’ or ‘insignificant’.
The test for market rent is the amount “a willing landlord might reasonably expect to receive, and a willing tenant might reasonably expect to pay for the tenancy”.
The factors the Tribunal must consider are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”. The evidence The property’s qualities
Mr Berry highlighted the premises’ failings. The electric gates have not worked for five years. The main bathroom’s bath was removed months ago to be replaced by a shower, and that is still a work in progress. One of the bedrooms is small at perhaps about eight square metres. The sleepout is not insulated and its windows are single glazed. It gets extremely hot in summer and very cold in winter. It could not be used as a bedroom. A lower deck and the former spa deck are showing signs of rot. The vaunted upstairs bathroom’s (the landlord praises its size and fitout) has water damage. Some light fittings have come loose. Some lights are not working. The upstairs heat pump is poorly situated in a hallway. The premises have suffered wear and tear and are not nearly as smart as they were five years before when the tenant began living at the premises.
The landlord says the tenant’s problems are quibbles that will be addressed by ongoing routine maintenance. Winter has just been, so the recent photographs of garden and outdoor areas do not show the property in its best light. When the maintenance is done and the garden is flowering, the property’s appearance will improve markedly.
The photographs I have seen confirm the premises is in relatively good condition overall even if some maintenance work is called for here and there.
The property’s qualities - and therefore the market rent for it - would tend to the upper end of the upper quartile in my view, based on the evidence I have heard and my knowledge I have the area myself from living nearby and having family who live in the area.
The property has some desirable features that may or may not apply to other upper quartile properties to varying degrees, including, it is within close walking distance to Cornwall Park; it is located high on the southern slopes; it has three bathrooms; it has a separate building that can be used as an office; it is well maintained outside and inside to a modern standard in keeping with its age; the garden is well fenced off from the road; and there are accessible outdoor areas for relaxation and entertaining.
My general impression is that it is not a grand property, but it is well above average for the area. Assessing the evidence
In this case, the parties submit evidence from Tenancy Services’ market rent data and advertisements for tenancies in the same location for comparable properties. 1
Assessing evidence in cases like this to get an accurate result is not simple. The many features that make a property more or less desirable than the next are many and they may blend into an alluring whole or a disappointing mess when a property is visited in person.
Finding an exact comparator to the tenancy in question is nigh impossible. The exercise must be approached with care and common sense. The Tribunal must consider the evidence objectively as if it were a sensible, discerning would-be tenant or landlord with no skin in the game. Bond data
The Tenancy Services data is extracted from bond information it received from the previous six months, excluding the most recent previous month. The data for particular suburbs can be downloaded from the website. The data includes the lower quartile, median, and upper quartile rents for distinct types of tenancies such as flat, and apartments.
In this case, the parties agree that data for upper quartile (presumably, the upper 25 per cent), four-bedroom homes in One Tree Hill are relevant. The Tenancy Services figure for those is $950.00 rent per week, based on 39 new tenancies. That figure is presumably an average or a median figure for all rentals of four-bedroom houses throughout One Tree Hill. Unfortunately, there are no date for the range of rents (i.e. the lowest and highest) or the particular addresses of the tenancies so the degree of comparison with other properties in the upper quartile for four-bedroom houses cannot be more fully evaluated for accurate comparison based on address or indeed on many other details it would be useful to know. 1 See Fisken v LeCole [2023] NZDC 17698 for a discussion on how to approach such evidence.
The landlord also provided data from the nearby Epsom suburb: it is $1,250.00.
Scrolling through the Tenancy Services website myself, discloses other nearby suburbs have rent levels for four-bedroom houses in the upper quartile as follows: Royal Oak, $1,070.00. Onehunga, $943.00. Greenlane, $1,150.00. Ellerslie, $950.00.
The bond data is useful to understand the general market value of rents in the upper quartile, but I do not find the data of much use beyond that. This particular premises shares the characteristics of being a four-bedroom house that is located in One Tree Hill. A comparison of such mundane features can only take one so far.
As mentioned above, my impression is that the premises is well above average. I think it likely that this property and properties like it would attract rent levels at the upper end of the upper quartile. Advertisements for comparable properties
Mr Berry provided copies of advertisements for the following (I add some commentary also): o13 Greenfield Road, Epsom, $1,400.00: 4 bedrooms, 198m 2 floor area, inground pool, spa pool. One bedroom is a spacious master with ensuite upstairs. A self-contained studio contains one of the bedrooms, bathroom, living area, and kitchenette. More northern location, still quite near to Cornwall Park. This property looks superior to the premises especially due to the swimming pool and spa. o10 Greenlane East, Remuera, $1,250.00. Five bedrooms. This premises looks inferior to the premises. It is not located near to a park. Its grounds do not look appealing. Its fit-out is not as good. Remuera may be a more prestigious suburb, but the actual location is not as pleasant.
The landlord provided information on four advertised properties including: o24C Rockfield Road, Ellerslie, $1,400.00: 5 bedrooms. More modern house, but similar amenities. More bedrooms, but not as close to Cornwall Park. o45 Tawera Road, Greenlane, $1,490.00. 5 bedrooms. New build, but not as solidly built. More northern location, closer to the motorway and supermarket, but not quite as close to Cornwall Park. A sample of one
It could be said that the rent historically paid for the premises in question is irrelevant to the issue of market rent. I would not go so far as to dismiss the rent paid altogether. The rent that has been paid previously is a sample of one, assuming the parties have contracted willingly. And the premises itself is as close a comparator as can likely be found.
In this case the tenants were content to pay the landlord $1,200.00 per week about three years ago. They are not content to pay $1,400.00 per week now however, so this particular sample – which is only one - must be considered in that light. Discussion
I have sympathy for Mr Berry’s situation. The cost of living has been increasing rapidly. Inflation is high and incomes are not necessarily keeping pace. A weekly rent of $1,400.00 is a lot of money. Assuming there is one person per room in the property, each person must now pay $350.00 each just in rent.
However, the Tribunal cannot be influenced by such considerations in an application like this where the relevant factors are stipulated as being only an enquiry into what the market decrees: 2 It is not the Tribunal’s function to set standards for the community. If rents in a locality are generally high, then it seems that they will still be the main basis for the determination of a market rent, no matter how much hardship is imposed on on the tenant...
It is incumbent on an applicant under s 24 to satisfy the Tribunal that the rent the landlord demands exceeds the market rent by a substantial amount.
The evidence does not satisfy me of that in this case. The Tenancy Services data does not show the tenancy’s rent is excessive. The parties’ examples of advertised properties do not prove that the rent is out of line with comparable properties. The 13 Greenfield Road premises does look potentially superior to the current premises, but that one example does not persuade me that the landlord’s new weekly rent amount is substantially out of line with market as a whole. 2 David Grinlinton Residential Tenancies: The Law and Practice (4 th Ed, LexisNexis, Wellington, 2012) at 4.21. Conclusion
I have considered all of the evidence and the parties’ submissions. I am not persuaded that the rental of $1,400.00 per week exceeds the market rent by a substantial amount.
It follows, the Tribunal must dismiss the application.

Tenancy Tribunal case 4664089 — Tenancy dispute at 54 Tawhiri Road, One Tree Hill, Auckland 1061

At a glance

Claims & awards

Tenancy Tribunal case 4664089 — Tenancy dispute at 54 Tawhiri Road, One Tree Hill, Auckland 1061

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions