What was the outcome of Tenancy Tribunal case 4727989?

The tribunal order states: Accommodation Management Limited t/a Rocklands Accommodation Epsom is

How much money was awarded in case 4727989?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4727989?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Leaks, Boarding House.

Where can I read the official tribunal order for case 4727989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9705178-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4727989?

The tribunal order states: Accommodation Management Limited t/a Rocklands Accommodation Epsom is

How much money was awarded in case 4727989?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4727989?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Leaks, Boarding House.

Where can I read the official tribunal order for case 4727989?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9705178-Tenancy_Tribunal_Order.pdf.

Room R91, 187 Gillies Avenue, Epsom, Auckland 1023, Tenancy Tribunal Case 4727989 — Mould & damp

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Reasons

Both parties attended the hearings on 30 May, 31 August and 17 November 2023. The landlord is represented by counsel.

The tenant’s boarding house tenancy is longstanding, having commenced on 14 May 2011.

On 27 March 2023, the tenant applied under application number 4535869 for an order declaring the landlord’s notice dated 10 March 2023 invalid because it is retaliatory and discriminatory “against older age, long time tenants in Rockland”.

The tenant stated on the application that initially the landlord merely emailed on 2 March 2023 to say that while works at the boarding house may cause some inconvenience, “there was no intention in the email to remove me and other tenants from the building.” Later the landlord gave notice dated 10 March 2023 for the tenancy to end after 28 days.

On 1 November 2023, the tenant further applied under application number 4727989 “exemplary damages related to "Retaliatory and unlawful of 28 days notice to vacated the premises" issues by the landlord to the tenant” and as follows: a) An order declaring the 28 days notice to vacate the premises dated at 17th October 2023 to be unlawful an invalid. b) An order declaring the 28 days notice to vacate the premises dated at 17th October 2023 to be retaliatory act by the landlord against the tenant. c) An order declaring the 28 days notice to vacate the premises dated at 17th October 2023 to be discrimination against the tenant.

On 13 April 2023, the landlord applied under application 4549150 for possession of the premises occupied by the tenant after issuing a 28 day notice dated 10 March 2023 and compensation due to the tenant failing to vacate the premises after the expiry of the notice.

The landlord’s application for compensation was later abandoned during the hearings, leaving behind only the issue of whether the landlord is entitled to an order for possession after the tenancy had ended by 28 days’ notice.

A second 28 days’ notice has been issued by the landlord, this time dated 17 October 2023 for the boarding house tenancy to end on 16 November 2023.

Counsel for the landlord advised that the landlord’s 10 March 2023 notice is effectively superseded by the 17 October 2023 notice which ultimately expired on 16 November 2023 on which an order for possession is presently sought.

It is accepted by both parties that substantial repairs and work need to be undertaken by the landlord so that the premises are safe, sanitary, and comfortable to live in.

What is strenuously disputed by the tenant is the method which the remediation work is required to be undertaken and whether it was necessary to decant the entire or part of the boarding house in which the tenant has been residing.

The tenant has challenged the two 28-day notices issued by the landlord on grounds that they are retaliatory and discriminatory. The tenant contends that he was merely caught up in the dispute between other longstanding tenants Andrew Ross and Michael Keesing both of whom the landlord was actively seeking to evict. The tenant argues that it is wrong “to retaliate” and punish 10 old tenants when the landlord was really having an argument with those 2 people, Andrew and Mike.

The tenant provided a timeline of events at the boarding house from the Auckland anniversary weekend floods until 7 June 2023, when ASJ Property Consultants inspected the premises. The timeline highlighted the property falling into disrepair, interactions between the landlord and the tenant, and various leaks and water problem in the property.

The tenant contends that 10 older tenants were discriminated against because the landlord gave young people accommodation at the building next door to relocate to but not this tenant and the older tenants. The tenant also contends that the landlord avoided maintenance, putting him at risk and neglected their duty of care. The tenant says that they have just been required to leave the boarding house permanently with no recourse to be allowed back into the boarding house after completion of the works. The tenant’s written submissions alluded to other new tenants of Colombian and Norwegian nationalities being invited to stay at the building.

I deal first with the tenant’s complaint that the landlord would be able to relocate them elsewhere if the landlord wanted to but instead used this as a chance to get rid of them.

The Tribunal has no jurisdiction to require the landlord to relocate him to another room at Rocklands or elsewhere.

The landlord is not a social housing provider. The landlord as a private legal entity is only required to comply with residential tenancy law in relation to this particular accommodation that the tenant is in. There is generally no legal obligation on a private landlord to provide alternative accommodation at other properties that they own or have connections with.

The Tribunal’s jurisdiction to determine the issues brought about by the parties is grounded on Part 2A of the Residential Tenancies Act 1986, under sections 66A through 66Y, which only apply to boarding house tenancies.

In dealing with the complaints raised by the tenant, the Tribunal must not lose sight of the forest for the trees.

The material issue before me is whether the landlord is entitled to an order for possession after having given the tenant notice terminating the tenancy and the tenant having not quit the premises within the period specified in the notice.

Section 66Y Residential Tenancies Act 1986 (‘RTA’) states that a landlord may apply to the Tribunal for a possession order if— (a) the landlord has given the tenant notice under section 66U and the tenant has not quit the premises within the period specified in the notice

Section 66U(1)(d) RTA states that a landlord of a boarding house may terminate a boarding house tenancy on 28 days’ notice; no reason is required to be given by the landlord. Subsection (2) of 66U requires the landlord’s notice to be in writing.

The ability of a boarding house landlord to terminate a boarding house tenancy without giving any reason (‘no-cause termination’) is preserved despite Parliament having abolished no cause terminations in non-boarding house residential ten ancies effective from February 2021.

For instance, a landlord may only issue a 90-day notice to terminate a periodic tenancy under section 51(2)(f) RTA 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.

A landlord may also issue a 63 days’ notice to terminate a periodic tenancy under section 51(1)(a) RTA where the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.

But as of 11 February 2021, a landlord can no longer issue a 90 day notice to terminate periodic tenancies without cause.

Parliament chose not to make a similar legislative change to boarding house tenancies to remove a boarding house landlord’s ability to issue no-cause termination notices.

I consider that this recognises and reinforces a boarding house landlord’s right to terminate boarding house tenancies without cause primarily because of the general transient nature of such tenancies.

That said, I acknowledge that this tenant had been on the premises for over 10 years. The longstanding nature of his boarding house tenancy however is irrelevant to the issue of whether the boarding house landlord can end the boarding house tenancy by issuance of a 28-day written notice under section 66U(1)(d) RTA.

The answer remains in the affirmative in that the boarding house landlord may at any time terminate a boarding house tenancy under 66U(1)(d) RTA without giving any reason or relying on any particular ground to end the boarding house tenancy.

In Portfolio Property Management Ltd v Clutterbuck [2013] NZHC 3165, Goddard J held at [31] that the RTA does not allow a tenant and landlord to enter into a boarding house tenancy for a fixed term of more than 28 days.

Boarding house tenancies under Part 2A of the RTA are therefore only periodic in nature and as the law stands, a landlord can end them without cause provided at least 28 days’ written notice has been given.

As the law stands, there is simply no security of rental tenure when it comes to boarding house tenancies; there is no expectation that a tenant can remain at the premises for as long as he or she wishes even though the tenant is not in breach of any of his obligations, pays rent on time and otherwise exemplary in conduct.

The only proviso that impinges on the landlord’s right to terminate a boarding house tenancy without cause is set out under section 66U(4) as follows: To avoid doubt, section 54 (which provides that the Tribunal may order that notice by a landlord is of no effect in certain circumstances) applies to boarding house tenancies.

Section 54 RTA states: (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

For a notice to be declared retaliatory under s 54(1) RTA, 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.

The material inquiry under s 54(1) is directed towards the landlord’s actual motivation in ending the tenancy at the time that it was issued.

The inquiry is NOT directed towards the various disagreements that may exist between the parties or other relevant parties at the material time.

Consequently, even though a tenant may have been exercising a right under the tenancy agreement or the RTA against the landlord, or have made a valid and reasonable complaint against the landlord for purported breach of the tenancy agreement or of the RTA, such as on maintenance issues, the Tribunal can only declare the landlord’s notice to be retaliatory if it considers, on the balance of probabilities, that 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, rather than some other reason.

Having heard from the parties and perused the documentation filed by both parties, I find that the landlord has issued its notice to terminate the boarding house tenancy because the landlord wanted to have extensive refurbishment and repairs of the premises are to be carried out, and it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken.

Senior Enforcement Officer of Auckland Council Brett Playle writes in his email of 2 June 2023 that Council has received a complaint about dampness, mould and maintenance issues at the premises. Following a site inspection carried out by Council’s environmental health officers, these issues were identified: a. Room Rae 105 on the 3 rd floor has been badly affected by flooding and moisture ingress. The carpet is now growing considerable amounts of white and black mould. The window sill has pooled water and putty has chipped. The curtains have mildew and mould on them. The room has an unhealthy musty odour. b. There are areas of carpet in the hallway in the 1 st and 2 nd floors that are damp and have evidence of moisture damage. c. There are 2 bedrooms on the 1 st floor where the carpet has had moisture damage. d. At the end of the hallways on the 1 st , 2 nd and 3rd floors near the windows, there is damp carpet which is possibly due to moisture ingress into the concrete wall. e. Some of the toilets on the 1 st , 2 nd and 3 rd floors are starting to have the seals perish on the foul-water pipes. f. A lot of this water damage is thought to be caused by a leak in the roof of the building. Some of the water damage on the 1 st floor has been caused by a recent burst water pipe at one of the hand basins on the 1 st floor toilets.

Council officers requested as a minimum, the landlord should remove the damp and mouldy carpets and curtains from room 105, thoroughly clean and sanitise surface in this room and aerate and dry out the room.

Council officers also recommended that priority should be given to fixing the roof leak and other leaks in the building structure so that the other maintenance issues can be completed.

While the preferred method of the landlord’s fixing of roof leaks, the building structure and other maintenance issues has been subject to intense scrutiny at the hearings before me, I consider that ultimately, the landlord/owner has autonomy to carry out repairs to its own property in the manner that the landlord/owner sees fit.

It is not for the tenant, the Tribunal nor any other party to dictate what a landlord should be doing in terms of the method of remediating the property. This is notwithstanding the tenant’s personal knowledge and experience in matters to do with building and renovation.

The landlord has sought professional advice from builders and building inspectors on refurbishment of the premises.

The building investigation report issued by ASJ Property Consultancy’s David Heard in June 2023 concluded as follows:

0 Recommendations Due to the buildings age and poor conditions the property now requires major repair to the roof and windows together with the refurbishment of the bathroom facilities. These, together with the recent flood event to the ground floor does and will render the property uninhabitable. The evidence of well-established mould to the carpet to the top floor is a major health issue and it is imperative that the area is closed off until the mould can be safely removed and the area sanitised. The carpet to the ground floor is exhibiting the early signs of mould infestation and requires removal at the earliest opportunity, once all occupants have vacated the accommodation. It is therefore recommended due to the numerous issues identified that all occupants residing within ground and top floor of the property are decamped to allow all works to be undertaken.

The tenant vehemently disputes the conclusions reached by ASJ Property Consultancy and the landlord’s reliance on its reasons to decant the premises, including the boarding room that the tenant occupies. The tenant however has not adduced any competing building report which might objectively cast aspersions on the above reports and evidence tendered by the landlord.

While the landlord had initially thought that the middle floor occupants may remain in situ while major refurbishments are carried out, counsel for the landlord advised that a decision has been since made to decant the entire building altogether, hence the issuance of the second notice to quit dated 17 October 2023.

Ultimately, I find that the landlord’s motivation for ending this boarding house tenancy is on undertaking major refurbishment of the premises and on terms and extent which the landlord have seen fit.

The tenant’s strong feelings and objections to the landlord’s proposed refurbishment works at the premises as well as his own suggestions of alternative methods of remediating the premises which do not involve the entire boarding house being decanted are of no moment.

The issue before the Tribunal is not whether there are any alternative methods of repairs being carried out that do not involve the entire boarding house being decanted. I reiterate that the method of undertaking the work remains the prerogative of the owner and the landlord.

The sole issue for consideration of the tenant’s applications couched under section 54 RTA is whether 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 when the landlord issued its 28-day notices.

On this material issue before me, I do not consider that 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 when the landlord issued 28-day notice dated 17 October 2023 for the boarding house tenancy to end on 16 November 2023.

It is my finding that the landlord’s motivation for ending this boarding house tenancy is in undertaking major refurbishment of the premises rather than the tenant’s complaints or exercising his rights under the RTA, and this effectively determines the applications filed herein.

The tenant’s claim that he has been discriminated on grounds of his age is also unsuccessful. I am satisfied that the landlord are in the process of decanting the entire boarding house for the proposed works to be carried out; this includes the student boarders. I reiterate that as a private organisation, the landlord was under no legal nor moral obligation to re-house the tenant in another complex or building owned by or connected to the landlord. The tenant has not shown how he has been treated differently when his boarding house tenancy has been terminated because everyone’s tenancy has been terminated, not just his and the other older boarders’ tenancy.

Accordingly, the tenant has not proven his claim that he has been unlawfully discriminated when the landlord ended his current tenancy at Rocklands.

During the hearing, the tenant alluded to a fact that most, if not all, of the student tenants on the second floor being given alternative accommodation outside of Rocklands by possibly the same landlord while the building is being refurbished, whereas he and the older tenants were not. If so, I accept that there may be a prima facie case the tenant may have been discriminated by the landlord in respect to the granting of an alternative tenancy.

Section12 RTA provides: Discrimination to be unlawful act (1) Each of the following is hereby declared to be an unlawful act: (a) discrimination against any person in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993 (‘HRA’); and (b) the giving of an instruction or the stating of an intention in contravention of subsection (2).

So, if all the young boarders were offered the alternative tenancy, and all the older boarders including this tenant were not, by reason of age, there is a potential argument that the tenant has been discriminated in respect of the grant of a tenancy in contravention of the HRA.

However, that aspect of potential discrimination is not about the tenancy at Rocklands, but concerns a new/alternative tenancy at a different location and different property which may or may not be owned by the same landlord. The tenant has only generally alluded to the alternative accommodation as being owned by or related to the same landlord. No specifics have been given on where that new/alternative tenancy is, or which person/entity has offered the new/alternative tenancy.

Consequently, it is in order for the tenant to file a separate Tenancy Tribunal claim based on discrimination under section 12 RTA if he considers that the landlord of the alternative tenancy (whomever that landlord may be) has engaged in discrimination against him as a prospective tenant (by reason of his age) in respect of the grant of a tenancy agreement in contravention of the HRA.

Counsel for the landlord had advised that on completion of the refurbishment works, and should Rocklands premises be made available to be re-let for boarding house accommodation, previous occupants such as this tenant are at liberty to apply for a boarding house tenancy with the landlord in due course.

Similarly, it is in order for the tenant to file a Tenancy Tribunal claim based on discrimination under section 12 RTA if he considers that the landlord has discriminated against him by reason of age in respect of the grant of a tenancy agreement at Rocklands (after its refurbishment) in contravention of the HRA.

But those prospective claims based on discrimination do not affect the termination of this tenancy which I do not consider to be discriminatory for reasons I have set out above.

In the upshot, the tenant’s applications for an order that the landlord’s notice of 17 October 2023 is retaliatory and discriminatory, and associated exemplary damages under sections 12, 54(2), (3) and Schedule 1A RTA fail.

The landlord is entitled to an order for possession of the premises, made pursuant to section 66Y Residential Tenancies Act 1986.

Reasons