What was the outcome of Tenancy Tribunal case 4675729?

The tribunal order states: Curtis Family Trust, Ann Curtis, John Curtis And Rebecca Curtis As Trustees

How much money was awarded in case 4675729?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $320.00 awarded to landlord

What type of tenancy dispute was case 4675729?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4675729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10357018-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4675729?

The tribunal order states: Curtis Family Trust, Ann Curtis, John Curtis And Rebecca Curtis As Trustees

How much money was awarded in case 4675729?

Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $320.00 awarded to landlord

What type of tenancy dispute was case 4675729?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4675729?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10357018-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 2B Wilkinson Street, Oriental Bay, Wellington Tenancy Tribunal Case 4675729 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4675729 — net $700.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replacement chattels	$320.00		Replacement chattels
Exemplary damages: termination notice without grounds		$1,000.00	termination notice without grounds
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$320.00	$1,020.44
Net award		$700.44
Bond		$2,200.00
Total payable by Landlord to Tenant		$700.44

Order

Curtis Family Trust, Ann Curtis, John Curtis And Rebecca Curtis As Trustees must pay Andrew Alan Peden $700.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,200.00 (3216133-019) to Andrew Alan Peden immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant and his family rented a fully furnished flat from 2021 until 18 December 2023. In the last months of the tenancy the landlord gave a 90 day notice because the house needed extensive alterations or repairs and it would not be practicable for the tenant to live there while the work was being done. This notice was subsequently withdrawn by the landlord. The tenant filed the application because he believes the landlord attempted to terminate the tenancy without grounds and that the notice was retaliatory. The landlord also filed an application with claims against the bond. The questions I have to decide are: • Did the landlord give a notice it knew it was not entitled to give? • Was the notice retaliatory? • Should the tenant pay for replacement furniture?

Did the landlord give a notice it knew it was not entitled to give?

The tenant claims that the landlord has breached its obligations under section 60AA Residential Tenancies Act 1986 (RTA) which states that a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The parties had a fixed term tenancy ending in mid October 2023. The tenant advised the landlord that he and his family would be moving cities and the last day of the tenancy would be 18 December. In effect the tenant gave his 28 day notice early. The landlord said the tenancy could not end on 18 December because it would be too inconvenient. The trustee dealing with the tenants said the tenancy would have to end in mid October and she advertised the flat for rent. The tenant did some research on the RTA. On 31 August 2023 he advised that because they had not agreed to extend the fixed term the tenancy would become periodic, and he could give 28 days notice. The next day the landlord gave a 90 day notice ending the tenancy on 1 December.
The grounds for giving the notice are set out in section 51(2)(f) RTA which states that a landlord may terminate a periodic tenancy if: extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
This was not a periodic tenancy on 31 August but this notice can be given during a fixed term tenancy pursuant to section 60A(2)(d) RTA to end a tenancy before the expiry of the fixed term “as if the tenancy were already periodic”.
From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) RTA. The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
The landlord did not have any supporting documentation to show there was a genuine intention to carry out extensive repairs. The notice was issued on 1 September, three days before its builder assessed to work and gave a date repairs could be carried out. Immediately prior to the decision to carry out extensive repairs the landlord had advertised with the intention to relet the premises. I am not persuaded there was a genuine intention when the notice was given and I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
It seems most likely to me the landlord acted intentionally. The tenant had advised the landlord of the legal position, so the landlord should have checked the relevant law before giving the 90 day notice. The effect on the tenant was stress, lost sleep, an uncomfortable home for three months because the landlord lived upstairs, and extra time spent researching the law and making an application. It is in tenants’ interests that landlords have regard to tenants’ rights and there is public interest that exemplary damages are ordered where there has been a breach of the RTA.
I allow exemplary damages in the amount of $1000. This is about half what I would usually order because the landlord agreed on 21 September that the tenants could stay until 18 December. This order acknowledges the three weeks of uncertainty for the tenants and that they ultimately got to leave on their chosen date.

Was the notice retaliatory?

The tenant also claimed exemplary damages because the notice was retaliatory. 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) RTA.
This claim is not considered because the 90 day notice was not a notice which complied with the RTA, and because I cannot consider two awards of exemplary damages for the same breach.

Should the tenant pay for replacement furniture?

The landlord claimed the cost of replacing furniture missing at the end of the tenancy. Tenants must leave any chattels that were provided for their use during the tenancy. See section 40(1)(e)(v) RTA.
The landlord claimed the cost of replacing a bed. This claim is dismissed because the landlord allowed the tenants to get rid of the bed in 2021. There is no mention in the exchanged messages of a requirement to leave the replacement bed at the end of the tenancy. This claim is dismissed.
The landlord has claimed the cost of replacing two stools and four dining chairs. The tenant said some of these were broken at the start of the tenancy, and some broke while they were living there. They threw the furniture out because the landlord had not been worried about the bed. The tenant has not been provided me with any supporting evidence, such as photos, to show the furniture was broken when they moved in. I find the tenants should have notified the landlord about the broken furniture as it happened. The amount ordered seems reasonable to me. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The bond is refunded to the tenant.

Claims and awards in Tenancy Tribunal application 4675729 — net $700.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Replacement chattels	$320.00		Replacement chattels
Exemplary damages: termination notice without grounds		$1,000.00	termination notice without grounds
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$320.00	$1,020.44
Net award		$700.44
Bond		$2,200.00
Total payable by Landlord to Tenant		$700.44

Order

Curtis Family Trust, Ann Curtis, John Curtis And Rebecca Curtis As Trustees must pay Andrew Alan Peden $700.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,200.00 (3216133-019) to Andrew Alan Peden immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant and his family rented a fully furnished flat from 2021 until 18 December 2023. In the last months of the tenancy the landlord gave a 90 day notice because the house needed extensive alterations or repairs and it would not be practicable for the tenant to live there while the work was being done. This notice was subsequently withdrawn by the landlord. The tenant filed the application because he believes the landlord attempted to terminate the tenancy without grounds and that the notice was retaliatory. The landlord also filed an application with claims against the bond. The questions I have to decide are: • Did the landlord give a notice it knew it was not entitled to give? • Was the notice retaliatory? • Should the tenant pay for replacement furniture?

Did the landlord give a notice it knew it was not entitled to give?

The tenant claims that the landlord has breached its obligations under section 60AA Residential Tenancies Act 1986 (RTA) which states that a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
The parties had a fixed term tenancy ending in mid October 2023. The tenant advised the landlord that he and his family would be moving cities and the last day of the tenancy would be 18 December. In effect the tenant gave his 28 day notice early. The landlord said the tenancy could not end on 18 December because it would be too inconvenient. The trustee dealing with the tenants said the tenancy would have to end in mid October and she advertised the flat for rent. The tenant did some research on the RTA. On 31 August 2023 he advised that because they had not agreed to extend the fixed term the tenancy would become periodic, and he could give 28 days notice. The next day the landlord gave a 90 day notice ending the tenancy on 1 December.
The grounds for giving the notice are set out in section 51(2)(f) RTA which states that a landlord may terminate a periodic tenancy if: extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
This was not a periodic tenancy on 31 August but this notice can be given during a fixed term tenancy pursuant to section 60A(2)(d) RTA to end a tenancy before the expiry of the fixed term “as if the tenancy were already periodic”.
From 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) RTA. The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
The landlord did not have any supporting documentation to show there was a genuine intention to carry out extensive repairs. The notice was issued on 1 September, three days before its builder assessed to work and gave a date repairs could be carried out. Immediately prior to the decision to carry out extensive repairs the landlord had advertised with the intention to relet the premises. I am not persuaded there was a genuine intention when the notice was given and I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
It seems most likely to me the landlord acted intentionally. The tenant had advised the landlord of the legal position, so the landlord should have checked the relevant law before giving the 90 day notice. The effect on the tenant was stress, lost sleep, an uncomfortable home for three months because the landlord lived upstairs, and extra time spent researching the law and making an application. It is in tenants’ interests that landlords have regard to tenants’ rights and there is public interest that exemplary damages are ordered where there has been a breach of the RTA.
I allow exemplary damages in the amount of $1000. This is about half what I would usually order because the landlord agreed on 21 September that the tenants could stay until 18 December. This order acknowledges the three weeks of uncertainty for the tenants and that they ultimately got to leave on their chosen date.

Was the notice retaliatory?

The tenant also claimed exemplary damages because the notice was retaliatory. 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) RTA.
This claim is not considered because the 90 day notice was not a notice which complied with the RTA, and because I cannot consider two awards of exemplary damages for the same breach.

Should the tenant pay for replacement furniture?

The landlord claimed the cost of replacing furniture missing at the end of the tenancy. Tenants must leave any chattels that were provided for their use during the tenancy. See section 40(1)(e)(v) RTA.
The landlord claimed the cost of replacing a bed. This claim is dismissed because the landlord allowed the tenants to get rid of the bed in 2021. There is no mention in the exchanged messages of a requirement to leave the replacement bed at the end of the tenancy. This claim is dismissed.
The landlord has claimed the cost of replacing two stools and four dining chairs. The tenant said some of these were broken at the start of the tenancy, and some broke while they were living there. They threw the furniture out because the landlord had not been worried about the bed. The tenant has not been provided me with any supporting evidence, such as photos, to show the furniture was broken when they moved in. I find the tenants should have notified the landlord about the broken furniture as it happened. The amount ordered seems reasonable to me. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The bond is refunded to the tenant.

Tenancy Tribunal case 4675729 — Exemplary damages at Unit/Flat 3, 2B Wilkinson Street, Oriental Bay, Wellington

At a glance

Tenancy Tribunal case 4675729 — Exemplary damages at Unit/Flat 3, 2B Wilkinson Street, Oriental Bay, Wellington

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord give a notice it knew it was not entitled to give?

Was the notice retaliatory?

Should the tenant pay for replacement furniture?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord give a notice it knew it was not entitled to give?

Was the notice retaliatory?

Should the tenant pay for replacement furniture?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions