What was the outcome of Tenancy Tribunal case 4734995?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4734995?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4734995?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4734995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9782366-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4734995?

The tribunal order states: The tenant’s application is dismissed.

How much money was awarded in case 4734995?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4734995?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4734995?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9782366-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1F, 99 Customs Street West, Auckland Central, Tenancy Tribunal Case 4734995 — Cleanliness

Order

The tenant’s application is dismissed.

Reasons

Mr Zwitser, the tenant, and Mr Graham, the landlord's representative, attended the hearing.
The hearing was held on 19 December 2023. The case
This case revolves around a dispute between Mr. Zwitser, and his landlord's representative, Mr Graham. The dispute primarily concerns the termination of Mr. Zwitser’s tenancy under section 51(1)(a) of the Residential Tenancies Act 1986 (“RTA”). In Mr Zwitser’s application, he states “Please note that my claim is against the Property Manager, not the property owner.”
The property was sold before the fixed-term tenancy ended on 12 November 2023, and the new owners’ daughter had planned to move into the property.
Section 51(1)(a) is a landlord’s termination notice (“termination notice”) 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.” The termination will take effect if a landlord’s termination notice satisfies the elements of section 51(1)(a) RTA.
Mr Zwitser does not dispute he was served with the termination notice via email on 16 October 2023. Mr Zwitser does not dispute the termination notice satisfied the elements of section 51(1)(a) RTA.
Mr. Graham acknowledges that Mr. Zwitser has been a reliable and responsible tenant. No significant issues would prevent Mr Graham from recommending the previous property owner extend the tenancy for another year. The issue for adjudication
What is the issue I need to adjudicate then?
After briefly hearing the parties’ evidence, I told Mr Zwitser I was unsure if his application was a tenancy or civil dispute. I told Mr Zwitser that if it is the latter, the appropriate forum to hear his application is the Dispute Tribunal.
Upon hearing further evidence, I was satisfied that the issue I needed to adjudicate was whether Mr Zwitser consented to vacate the property before the termination date of 18 December 2023.
I acknowledge Mr Zwitser felt badly treated after being told he needed to vacate the property. Mr Zwitser said in the hearing: “Now, I don't even know who the new owners are. I've met the daughter because I gave her access to do some scoping [to help her prepare for her move-in]. In fact, I've given everybody access. It appears to me that I'm the only person that seems to be accommodating everybody, and I'm the last on the list [about my needs as a tenant].
I told Mr Zwitser that moving is a big task. It is not just physically a big task. It can be emotional too. This would be even more so for tenants who had a long tenancy. For a landlord, it is a rental property. For Mr Zwitser, it has been his home for a year. As hard as it is, Mr Zwitser said, on top of emotional stress, he felt he was under pressure to vacate the property at the end of his fix-term tenancy.
Mr Zwitser says he was led to believe he had to vacate the property no later than the end of the fixed-term tenancy. Mr Zwitser referred me to the relevant passage in Mr Graham's email of 16 October 2023. The passage states: “In accordance with the Residential Tenancies Act 1986 we are required to provide you with 63 days’ written notice of termination of your tenancy. Your tenancy will therefore end on 12 November 2023 and we ask that you vacate the property by this date.”
Mr Zwitser argues that the termination notice would have allowed him to stay until the 18th of December 2023. But Mr Graham’s email of 16 October 2023 led him to believe he needed to quickly find a new place and vacate the property by 12 November 2023.
Mr Graham and Mr Zwitser both acknowledge that discussions were held regarding the vacation date, and Mr Graham offered alternative properties for Mr Zwitser to consider moving into.
In an email dated 6 November 2023 to Mr Zwitser, Mr Graham said “3. The new owners are still willing to offer 48 hours’ notice for you to leave anytime from now until the 18 th of December 2023 to end the tenancy.”
Mr Graham gave further evidence that Mr. Zwitser was offered two options: a. Option 1: to keep the 12th of November as the fixed term end date; or b. Option 2: to choose the 63-day notice period starting from 16 October 2023 and end on 18 December 2023.
Mr Graham said the landlord also offered Mr Zwitser to vacate the property with 48 hours’ notice.
In an email from Mr Zwitser to Mr Graham dated 2 November 2023, Mr Zwitser said, “I am willing to accommodate with 2 weeks free rent in reciprocation. I will follow the cleaning guide and expect a full return of my bond.”
On 16 November 2023, Mr Zwitser sent an email to Mr Graham stating “Hi David, Thank you for your email. I have taken up a new tenancy and intend next Sunday the 26 th of November to be my last day here.”
Mr Graham says he tried to accommodate Mr. Zwitser’s needs and make a difficult situation easier for him. However, there was a misunderstanding about the availability of a car park in one of the properties offered, which caused further complications.
From the viewpoint of section 51(1)(a) RTA, regardless of Mr. Zwitser's decision on which options to take, the outcome remains the same because he has to vacate the premises. The only difference is the timing of when he vacates, either earlier or on 18 December 2023.
I acknowledge a property with a car park is essential to Mr Zwitser because he needs to use the car for work and other purposes when he is not at work. But for section 51(1)(a) RTA, it is irrelevant to my decision whether Mr Zwitser consented to vacate the premises earlier. Mr Zwitser either consented or did not consent. Standard of proof
Mr Zwitser must prove all elements of the claim on the balance of probabilities, i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities. Analysis
Mr Zwitser claimed that up until Mr Graham conceded that by law, the termination date is 18 December 2023, “I had nothing but pressure and no question in my mind that [Mr Graham] and the owner want me out by the 12th of November. There was nothing unambiguous about that.”
In my view, if Mr. Graham lawfully served Mr. Zwitser with a termination notice, then Mr Zwitser has no choice but to vacate the premises. For Mr. Zwitser, leaving the property was not something he wanted to do since it was his home. The way Mr. Zwitser had to leave his home might have made him feel like he had no other choice but to leave. I have no doubt the evidence supports how he felt. It must have been a feeling of frustration, uncertainty, and powerlessness in light of the termination notice.
But is the process legal under the Act? The answer is yes. Conclusion
Mr. Zwitser did not dispute the lawfulness of the termination notice. In fact, he acknowledged that the notice was lawfully served on him via email.
Although Mr. Zwitser felt he was being pressured to leave the property by Mr. Graham and the owner, he ultimately decided to vacate the property on 26 November 2023. Despite his belief that he had no choice in the matter, the evidence shows that Mr. Zwitser vacated the property on a specified date suitable to him.
Accordingly, there is no case to answer. Mr Zwitser’s application is dismissed.
If I am wrong in my decision that there is no case to answer, I have carefully reviewed the evidence and find that Mr Zwitser's decision to vacate the property on 26 November 2023 did not satisfy me, on the balance of probabilities that he was under pressure to leave the premises early.

Tenancy Tribunal case 4734995 — Cleanliness at Unit/Flat 1F, 99 Customs Street West, Auckland Central,

At a glance

Tenancy Tribunal case 4734995 — Cleanliness at Unit/Flat 1F, 99 Customs Street West, Auckland Central,

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