What was the outcome of Tenancy Tribunal case 4757959?

The tribunal order states: The rent for the above tenancy at Unit/Flat 408, 223B Green Lane West, Epsom,

How much money was awarded in case 4757959?

Filing Fee: $20.44 awarded to tenant; Rent Arrears: $189.00 awarded to landlord

What type of tenancy dispute was case 4757959?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4757959?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9939710-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4757959?

The tribunal order states: The rent for the above tenancy at Unit/Flat 408, 223B Green Lane West, Epsom,

How much money was awarded in case 4757959?

Filing Fee: $20.44 awarded to tenant; Rent Arrears: $189.00 awarded to landlord

What type of tenancy dispute was case 4757959?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4757959?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9939710-Tenancy_Tribunal_Order.pdf.

Unit/Flat 408, 223B Green Lane West, Epsom, Auckland Tenancy Tribunal Case 4757959 — Rent arrears

Claims and awards in Tenancy Tribunal application 4757959 — net $168.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 23.11.23 to 4.2.24	$189.00		Rent arrears from 23.11.23 to 4.2.24
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$189.00	$20.44
Net award	$168.56
Total payable by Tenant to Landlord	$168.56

Order

The rent for the above tenancy at Unit/Flat 408, 223B Green Lane West, Epsom, Auckland 1051 is set at $990.00/week.
Oliver Leydon-Davis and Anna Colquhoun must pay Mehome Limited As Agent For C Li $168.56 immediately, being rent arrears to 4 February 2024.
The Bond Centre is to pay the bond of $3,800.00 (6391944-008) immediately apportioned as follows: Mehome Limited As Agent For C Li: $168.56 Oliver Leydon-Davis and Anna Colquhoun: $3,631.44
The rent adjustment applies from 23 November 2023. Accordingly, the tenants must pay the adjusted shortfall for the period 23 November 2023 to 4 February 2024.
The landlord filed a cross application for rent arrears. I allow the application but reduce the rent arrears owing by the tenants.

Reasons

Both parties attended the hearing. The tenants appeared in person and the landlord attended via teleconference.
The Tenants have applied under s 25 of the Residential Tenancies Act 1986 (RTA) for a review of the rent which they say is too high.
The tenancy commenced 17 November 2022 and ended on 4 February 2024.
The premises are situated within a near-new apartment complex on Greenlane Road Epsom. There are several apartment ‘towers’ within the complex, all with the street number of 223 Greenlane Road. The apartments vary in respect of size, elevation, bearing and carparks.
The Landlord increased the rent by valid notice dated 21 September 2023 which took effect on 23 November 2023. There is no evidence of rent increases previously.
The Tenants were paying $950.00/week and started paying $959.00/week from 23 November 2023 based on their own assessment of a fair rent increase.
The tenants say that an identical apartment within the complex is renting for $900.00 per week. Tenants started negotiating with the landlord after they received the notice to increase rent. The tenants say they found it difficult to have dialogue with the landlord. The tenants’ final offer to the landlord was $959.00 per week on 27 November 2023.
In support of their claim the Tenants have provided the following evidence: a. Tenancy Agreement confirming original rent amount of $950.00/week. b. Rent advertisements for other apartments within the same complex. c. Photographs of an identical apartment for rent within the same complex. d. Auckland Council property information.
The landlord contends that the new weekly rent of $1050.00 is reasonable. The landlord advised that the owner is not prepared to lower the rent. The landlord also says that the new tenants are paying the increased rent. They say that this apartment is north facing and unique. The landlord further says that the strongest proof that the new rent is a market rent based on the fact that the new tenants are paying it.
The landlord based the new rent on another apartment in the same complex on level 7 which is rented at $1100.00. She says that apartment 707 is the same size and identical. Tenants say that their apartment is lower down and does not have the same views as level 7. Level 7 has views of the city, Rangitoto and the Sky Tower.
Establishing market rent for apartments within the same complex is challenging in that some owners will charge ‘less for more’ and others vice versa. I do not consider I am qualified to appraise the rental value of the premises myself. I do not have any current appraisals from a suitably qualified valuer.
Market rent values for the area according to the Tenancy Services market rent tool are as follows: Epsom 2-bedroom apartment: Lower Quartile: $600.00 Median: $685.00 Upper Quartile: $765.00
Further analysis of the rental market within the complex for two-bedroom, two- bathroom apartments are as follows: a. Apartment 708/223A (2 carparks) 130 m 2 $900.00/week b. Apartment on level 3/223A (1 carpark) $900.00/week c. Apartment 704/223A (2 carparks) 100 m 2 $900.00/week d. Apartment 507/223B (2 carparks) 99 m 2 $1000.00/week (currently listed for rent on TradeMe) e. Apartment 306/223A (no carpark) 114 m 2 $940.00/week plus $60.00/week for one carpark f. Apartment 209/223D (1 carpark) 94 m 2 $930.00/week.
Section 25 of the RTA provides that the Tribunal may make an order reducing the rent to an amount that is in line with the market rent. The Tribunal must be satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount.
Market rent is defined as: 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 onus is on the tenant to establish that rent to become payable, not only exceeds market rent, but also exceeds it by a substantial amount.
The term 'substantial' is not defined in the RTA. Some of the older Tribunal cases have suggested a 'rule of thumb' of 10% over market rent. In my view that is not a helpful guideline. Where rents increase at a rate above inflation, rent will eventually assume a greater proportion of household incomes. This will in turn reduce the availability of income for other household expenditure. In these circumstances, it is arguable that even a relatively modest increase over market rent could have a substantial effect.
The concept of 'market' rent is not completely unfettered. It is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations.
Willing: The term ‘willing’ is not defined in the RTA. Relevant dictionary definitions include "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance" (Oxford English), and "done, borne or accepted by choice without reluctance ... of or relating to the will or power of choice" (Merriam Webster). Both dictionary definitions imply a readiness to do something without reluctance.
The Tribunal must have regard to (1) the general level of rent for comparable tenancies in the same or similar localities and (2) any other matter it considers relevant.
Comparable rents: This usually involves comparing the premises to advertisements for similar premises in the locality. This approach has its limitations: although advertisements usually list the essential features of the property advertised (e.g. number of bedrooms, living rooms, bathrooms, garage etc.), there is often limited information to compare the relative quality and condition of the premises.
In addition, the fact that a property is advertised at a particular rent does not necessarily mean the asking rent is 'market rent', even where a tenant signs an agreement to take the property for that amount. Section 25 RTA refers to the "rent payable or to become payable" exceeding market rent. So, a tenant could theoretically agree to pay an excessive rent, and then apply to reduce it in line with market rent.
Tenancy Services statistics: It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. Rents can vary within the broad areas listed, and it can be difficult to determine where a property sits in relation the other properties covered by the statistics (although they do include 'median' as well as 'lower quartile' and 'upper quartile' rents).
The details for the property in this case are: capital value $1,280,000.00, apartment size 99m 2 , 2 bedrooms, 2 bathrooms, 2 carparks. The apartment complex is near-new.
Having regard to all of the evidence I consider a rent between $980.00 and $1000.00/week is reasonable, and I accordingly set the rent at $990.00/week. Arriving at this decision I have had regard to the level of the apartment (level 4) and the two carparks and that there has been no rent increase since the start of the tenancy in November 2022. I also note that apartment 507/223B is currently listed for rent at $1000.00/week with similar specifications, the point of difference being it is one level higher.
Between 23 November 2023 and 31 January 2024 (10 weeks) the tenants increased their weekly rent payments to $959.00. For the period 1 to 4 February 2024 (4 days) the tenants paid $685.00. The difference between $990.00 and $959.00 is $31.00 per week which the tenants need to pay. The calculation is as follows: 10 weeks x $31.00 = $310.00 Less overpayment by tenants of $121.00 on 31 January 2024 (based on the new daily rate of $990.00/week divided by 4 days) Amount payable to landlord: $189.00 (less the application filing fee of $20.44).
Because Oliver Leydon-Davis, Anna Colquhoun has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4757959 — net $168.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears from 23.11.23 to 4.2.24	$189.00		Rent arrears from 23.11.23 to 4.2.24
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$189.00	$20.44
Net award	$168.56
Total payable by Tenant to Landlord	$168.56

Order

The rent for the above tenancy at Unit/Flat 408, 223B Green Lane West, Epsom, Auckland 1051 is set at $990.00/week.
Oliver Leydon-Davis and Anna Colquhoun must pay Mehome Limited As Agent For C Li $168.56 immediately, being rent arrears to 4 February 2024.
The Bond Centre is to pay the bond of $3,800.00 (6391944-008) immediately apportioned as follows: Mehome Limited As Agent For C Li: $168.56 Oliver Leydon-Davis and Anna Colquhoun: $3,631.44
The rent adjustment applies from 23 November 2023. Accordingly, the tenants must pay the adjusted shortfall for the period 23 November 2023 to 4 February 2024.
The landlord filed a cross application for rent arrears. I allow the application but reduce the rent arrears owing by the tenants.

Reasons

Both parties attended the hearing. The tenants appeared in person and the landlord attended via teleconference.
The Tenants have applied under s 25 of the Residential Tenancies Act 1986 (RTA) for a review of the rent which they say is too high.
The tenancy commenced 17 November 2022 and ended on 4 February 2024.
The premises are situated within a near-new apartment complex on Greenlane Road Epsom. There are several apartment ‘towers’ within the complex, all with the street number of 223 Greenlane Road. The apartments vary in respect of size, elevation, bearing and carparks.
The Landlord increased the rent by valid notice dated 21 September 2023 which took effect on 23 November 2023. There is no evidence of rent increases previously.
The Tenants were paying $950.00/week and started paying $959.00/week from 23 November 2023 based on their own assessment of a fair rent increase.
The tenants say that an identical apartment within the complex is renting for $900.00 per week. Tenants started negotiating with the landlord after they received the notice to increase rent. The tenants say they found it difficult to have dialogue with the landlord. The tenants’ final offer to the landlord was $959.00 per week on 27 November 2023.
In support of their claim the Tenants have provided the following evidence: a. Tenancy Agreement confirming original rent amount of $950.00/week. b. Rent advertisements for other apartments within the same complex. c. Photographs of an identical apartment for rent within the same complex. d. Auckland Council property information.
The landlord contends that the new weekly rent of $1050.00 is reasonable. The landlord advised that the owner is not prepared to lower the rent. The landlord also says that the new tenants are paying the increased rent. They say that this apartment is north facing and unique. The landlord further says that the strongest proof that the new rent is a market rent based on the fact that the new tenants are paying it.
The landlord based the new rent on another apartment in the same complex on level 7 which is rented at $1100.00. She says that apartment 707 is the same size and identical. Tenants say that their apartment is lower down and does not have the same views as level 7. Level 7 has views of the city, Rangitoto and the Sky Tower.
Establishing market rent for apartments within the same complex is challenging in that some owners will charge ‘less for more’ and others vice versa. I do not consider I am qualified to appraise the rental value of the premises myself. I do not have any current appraisals from a suitably qualified valuer.
Market rent values for the area according to the Tenancy Services market rent tool are as follows: Epsom 2-bedroom apartment: Lower Quartile: $600.00 Median: $685.00 Upper Quartile: $765.00
Further analysis of the rental market within the complex for two-bedroom, two- bathroom apartments are as follows: a. Apartment 708/223A (2 carparks) 130 m 2 $900.00/week b. Apartment on level 3/223A (1 carpark) $900.00/week c. Apartment 704/223A (2 carparks) 100 m 2 $900.00/week d. Apartment 507/223B (2 carparks) 99 m 2 $1000.00/week (currently listed for rent on TradeMe) e. Apartment 306/223A (no carpark) 114 m 2 $940.00/week plus $60.00/week for one carpark f. Apartment 209/223D (1 carpark) 94 m 2 $930.00/week.
Section 25 of the RTA provides that the Tribunal may make an order reducing the rent to an amount that is in line with the market rent. The Tribunal must be satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount.
Market rent is defined as: 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 onus is on the tenant to establish that rent to become payable, not only exceeds market rent, but also exceeds it by a substantial amount.
The term 'substantial' is not defined in the RTA. Some of the older Tribunal cases have suggested a 'rule of thumb' of 10% over market rent. In my view that is not a helpful guideline. Where rents increase at a rate above inflation, rent will eventually assume a greater proportion of household incomes. This will in turn reduce the availability of income for other household expenditure. In these circumstances, it is arguable that even a relatively modest increase over market rent could have a substantial effect.
The concept of 'market' rent is not completely unfettered. It is constrained by the requirement that both parties be 'willing', and that the rent meets their 'reasonable' expectations.
Willing: The term ‘willing’ is not defined in the RTA. Relevant dictionary definitions include "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance" (Oxford English), and "done, borne or accepted by choice without reluctance ... of or relating to the will or power of choice" (Merriam Webster). Both dictionary definitions imply a readiness to do something without reluctance.
The Tribunal must have regard to (1) the general level of rent for comparable tenancies in the same or similar localities and (2) any other matter it considers relevant.
Comparable rents: This usually involves comparing the premises to advertisements for similar premises in the locality. This approach has its limitations: although advertisements usually list the essential features of the property advertised (e.g. number of bedrooms, living rooms, bathrooms, garage etc.), there is often limited information to compare the relative quality and condition of the premises.
In addition, the fact that a property is advertised at a particular rent does not necessarily mean the asking rent is 'market rent', even where a tenant signs an agreement to take the property for that amount. Section 25 RTA refers to the "rent payable or to become payable" exceeding market rent. So, a tenant could theoretically agree to pay an excessive rent, and then apply to reduce it in line with market rent.
Tenancy Services statistics: It is also common for parties to refer to the 'market rent' statistics published by Tenancy Services. Rents can vary within the broad areas listed, and it can be difficult to determine where a property sits in relation the other properties covered by the statistics (although they do include 'median' as well as 'lower quartile' and 'upper quartile' rents).
The details for the property in this case are: capital value $1,280,000.00, apartment size 99m 2 , 2 bedrooms, 2 bathrooms, 2 carparks. The apartment complex is near-new.
Having regard to all of the evidence I consider a rent between $980.00 and $1000.00/week is reasonable, and I accordingly set the rent at $990.00/week. Arriving at this decision I have had regard to the level of the apartment (level 4) and the two carparks and that there has been no rent increase since the start of the tenancy in November 2022. I also note that apartment 507/223B is currently listed for rent at $1000.00/week with similar specifications, the point of difference being it is one level higher.
Between 23 November 2023 and 31 January 2024 (10 weeks) the tenants increased their weekly rent payments to $959.00. For the period 1 to 4 February 2024 (4 days) the tenants paid $685.00. The difference between $990.00 and $959.00 is $31.00 per week which the tenants need to pay. The calculation is as follows: 10 weeks x $31.00 = $310.00 Less overpayment by tenants of $121.00 on 31 January 2024 (based on the new daily rate of $990.00/week divided by 4 days) Amount payable to landlord: $189.00 (less the application filing fee of $20.44).
Because Oliver Leydon-Davis, Anna Colquhoun has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4757959 — Rent arrears at Unit/Flat 408, 223B Green Lane West, Epsom, Auckland

At a glance

Tenancy Tribunal case 4757959 — Rent arrears at Unit/Flat 408, 223B Green Lane West, Epsom, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions