What was the outcome of Tenancy Tribunal case 4777944?

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

How much money was awarded in case 4777944?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4777944?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4777944?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9909151-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4777944?

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

How much money was awarded in case 4777944?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4777944?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4777944?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9909151-Tenancy_Tribunal_Order.pdf.

Unit/Flat 8, 2A Ewenson Avenue, One Tree Hill, Auckland Tenancy Tribunal Case 4777944 — Exemplary damages

Order

The tenant’s application is dismissed.

Reasons

Both parties attended the hearing.
On 8 January 2024 the landlord gave the tenant 63-days’ notice pursuant to the Residential Tenancies Act 1986 (“the Act”), section 51(1)(a), ending the tenancy on 11 March 2024.
The applicant claimed that this notice was retaliatory and is seeking damages of two weeks rent, bond, moving costs and exemplary damages.
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) Residential Tenancies Act 1986.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
In support of that claim, the tenant stated that he was notified by Ray White on 15 November 2023 that the property was being offered for sale. A marketing plan was to run until 6 December 2023. This included regular scheduled viewings. No information was presented to the Tribunal that indicated the relationship between the landlord and tenant was strained prior to the property being offered for sale.
After 7 December 2023, the landlord requested viewings on Saturdays and Sundays on an appointment basis, with the last viewings for the year being planned for 16 and 17 December 2023. The tenant stated that Saturdays were not convenient.
On 19 December 2023 the landlord requested another viewing on 23 December 2023 and the tenant declined. He stated that he was unavailable for further viewings until 10 January 2024. Some pressure was put on the tenant and he offered 24 December 2023 as a viewing date, but this didn’t suit the vendor.
Several further requests for viewing times were made to the tenant before 10 January 2024, which he also declined.
The tenant stated that after 10 January 2024 he would only consent to viewings on week days.
On 8 January 2024 the tenant received 63-day’s notice from the landlord to terminate the tenancy so the owners could move back into the property. This was an option available to the landlord at any time, under 51(1) of the Act.
The landlord stated that the owners of the property are two young men with limited financial means. There is some urgency regarding the sale of this property. The real estate agent has been frustrated at the level of access to the property and believes three prospective buyers were lost because they were unable to view the property between 17 December 2023 and 10 January 2024. The real estate agent was also concerned about the tenant’s presentation of the property to prospective buyers.
Section 48 of the Act provides that a tenant must give reasonable access to a landlord, prospective purchasers, and real estate agents. 48Landlord’s right of entry .... (3)With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises— (a)to prospective tenants; or (b)to prospective purchasers; or (c)to a registered valuer engaged in the preparation of a report on the premises; or (d)to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premises; or (e)to an expert engaged in appraising or evaluating the premises; or (f)to a person who is authorised to inspect the premises under any enactment. (3A)For the purposes of subsection (3), the tenant— (a)may not withhold his or her consent unreasonably; and (b)may make the consent subject to any reasonable conditions.
I am sympathetic with the tenant’s position regarding the access and viewings requested over the Christmas period 2023; they were an imposition to say the least.
However, it appears the vendor was in a delicate financial position and an inability to bring prospective purchasers through the property for the 24 days between 17 December 2023 and 10 January 2024 and also on weekends posed a significant difficulty to them. The landlord stated three potential purchasers were lost due to their inability to view the property over this period.
Section 48 of the Act sets out an obligation on the tenant to not withhold his consent unreasonably. In the circumstances I find the tenant did withhold his consent unreasonably. However I also note that this finding is not determinative on the outcome of this hearing; the outcome of this hearing turns simply on whether the applicant proves on the balance of probabilities that the termination notice was retaliatory.
I find that the landlord, having tried and been unsatisfied with the results of marketing the property with the tenancy in place, relied on a lawful provision to terminate the tenancy so they could move back into the property themselves. This is something they could have chosen to do prior to November 2023 in order to facilitate the sale of the property.
I have not heard any evidence that convinces me on the balance of probabilities that the owners were motivated by anything that went beyond their legitimate needs. They were responding to the situation they found themselves in which had resulted from the tenant’s interpretation of “reasonable access” impinging on their ability to effectively market their property.

Order

The tenant’s application is dismissed.

Reasons

Both parties attended the hearing.
On 8 January 2024 the landlord gave the tenant 63-days’ notice pursuant to the Residential Tenancies Act 1986 (“the Act”), section 51(1)(a), ending the tenancy on 11 March 2024.
The applicant claimed that this notice was retaliatory and is seeking damages of two weeks rent, bond, moving costs and exemplary damages.
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) Residential Tenancies Act 1986.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.
In support of that claim, the tenant stated that he was notified by Ray White on 15 November 2023 that the property was being offered for sale. A marketing plan was to run until 6 December 2023. This included regular scheduled viewings. No information was presented to the Tribunal that indicated the relationship between the landlord and tenant was strained prior to the property being offered for sale.
After 7 December 2023, the landlord requested viewings on Saturdays and Sundays on an appointment basis, with the last viewings for the year being planned for 16 and 17 December 2023. The tenant stated that Saturdays were not convenient.
On 19 December 2023 the landlord requested another viewing on 23 December 2023 and the tenant declined. He stated that he was unavailable for further viewings until 10 January 2024. Some pressure was put on the tenant and he offered 24 December 2023 as a viewing date, but this didn’t suit the vendor.
Several further requests for viewing times were made to the tenant before 10 January 2024, which he also declined.
The tenant stated that after 10 January 2024 he would only consent to viewings on week days.
On 8 January 2024 the tenant received 63-day’s notice from the landlord to terminate the tenancy so the owners could move back into the property. This was an option available to the landlord at any time, under 51(1) of the Act.
The landlord stated that the owners of the property are two young men with limited financial means. There is some urgency regarding the sale of this property. The real estate agent has been frustrated at the level of access to the property and believes three prospective buyers were lost because they were unable to view the property between 17 December 2023 and 10 January 2024. The real estate agent was also concerned about the tenant’s presentation of the property to prospective buyers.
Section 48 of the Act provides that a tenant must give reasonable access to a landlord, prospective purchasers, and real estate agents. 48Landlord’s right of entry .... (3)With the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises— (a)to prospective tenants; or (b)to prospective purchasers; or (c)to a registered valuer engaged in the preparation of a report on the premises; or (d)to a real estate agent engaged in appraising, evaluating, or selling or otherwise disposing of the premises; or (e)to an expert engaged in appraising or evaluating the premises; or (f)to a person who is authorised to inspect the premises under any enactment. (3A)For the purposes of subsection (3), the tenant— (a)may not withhold his or her consent unreasonably; and (b)may make the consent subject to any reasonable conditions.
I am sympathetic with the tenant’s position regarding the access and viewings requested over the Christmas period 2023; they were an imposition to say the least.
However, it appears the vendor was in a delicate financial position and an inability to bring prospective purchasers through the property for the 24 days between 17 December 2023 and 10 January 2024 and also on weekends posed a significant difficulty to them. The landlord stated three potential purchasers were lost due to their inability to view the property over this period.
Section 48 of the Act sets out an obligation on the tenant to not withhold his consent unreasonably. In the circumstances I find the tenant did withhold his consent unreasonably. However I also note that this finding is not determinative on the outcome of this hearing; the outcome of this hearing turns simply on whether the applicant proves on the balance of probabilities that the termination notice was retaliatory.
I find that the landlord, having tried and been unsatisfied with the results of marketing the property with the tenancy in place, relied on a lawful provision to terminate the tenancy so they could move back into the property themselves. This is something they could have chosen to do prior to November 2023 in order to facilitate the sale of the property.
I have not heard any evidence that convinces me on the balance of probabilities that the owners were motivated by anything that went beyond their legitimate needs. They were responding to the situation they found themselves in which had resulted from the tenant’s interpretation of “reasonable access” impinging on their ability to effectively market their property.

Tenancy Tribunal case 4777944 — Exemplary damages at Unit/Flat 8, 2A Ewenson Avenue, One Tree Hill, Auckland

At a glance

Tenancy Tribunal case 4777944 — Exemplary damages at Unit/Flat 8, 2A Ewenson Avenue, One Tree Hill, Auckland

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