What was the outcome of Tenancy Tribunal case 4832640?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4832640?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4832640?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4832640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10193183-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4832640?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4832640?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4832640?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4832640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10193183-Tenancy_Tribunal_Order.pdf.

70 Lucca Crescent, Rolleston, Rolleston 7615 Tenancy Tribunal Case 4832640 — Healthy homes

Order

The application is dismissed.

Reasons

Representatives of the landlord attended a hearing by telephone. The tenants did not attend. I attempted to contact the tenants by telephone during the hearing, but the calls were not answered.
The landlord has applied for possession of the premises. The landlord claims that the tenancy expired at the end of a fixed term on 10 March 2024. The landlord says that it gave notice that the tenancy would not be renewed or extended, within the prescribed period.
The landlord provided copies of a tenancy agreement and various renewals with its application but did not take me through the evidence during the hearing. The landlord has the onus of proving its application and must provide the Tribunal with the evidence and submissions to establish its claims.
The documents included a tenancy agreement between the tenants and Metropolis Property Management Limited dated 3 December 2019. The tenancy was for a fixed term to 16 November 2020. At the end of the first fixed term the original parties signed a “tenancy extension” document for a further fixed term to 16 December 2021.
On 8 October 2021 Progressive Realty Limited and the tenants signed an “Extension of Fixed Term Tenancy Agreement” for the premises. That document recorded the current tenancy end date of 16 November 2021 and the extended tenancy end date of 31 November 2022. The “extension” document also recorded a rent increase and had a Healthy Homes Statement attached, which recorded the healthy homes compliance date of the tenancy as 14 February 2022.
Two further “extensions” were signed by the parties on 12 November 2022 and in October 2023. The final “extension” recorded a tenancy end date of 10 March 2024.
On 11 December 2023 the landlord sent an email to the tenant advising that the tenancy would not be extended as the landlord was “looking to sell”. On 15 December, the landlord sent another email to the tenant noting that the fixed term was due to expire on 10 March 2024, asked whether the tenant wanted to extend the tenancy and gave advice on the tenant’s obligations for giving notice to end the tenancy. The tenant replied that it wanted to extend.
The landlord replied with another email on 15 December advising that the first email was sent in error and said that the lease would not be extended as the owner will be selling the property.
The tenants did not move out on 10 March 2024, so the landlord made this application.
Under s60A Residential Tenancies Act 1986 (RTA), as it applied prior to 11 February 2021, there were generally three situations arising at the end of a fixed term tenancy, either; a. The parties agreed to renew or extend the fixed term tenancy; or b. The landlord or tenant gave notice during the effective period (90 – 21 days before the fixed term end date) that the tenancy would be ending, in which case the tenancy ended on the fixed term end date; or c. No notice is given during the effective period, so at the end of the fixed term, the tenancy became periodic.
There were significant changes from 11 February 2021 directed to security of tenure for tenants. The most notable change to s60A RTA, is that a landlord is no longer able to end the tenancy at the end of the fixed term period, unless that is agreed to by the tenant, or if other limited circumstances apply. 1 This means that if the tenant wants to remain in the tenancy, then notwithstanding the wishes of the landlord, the tenancy becomes a periodic tenancy.
In El Amor Limited v Garon John Cabaret [2023] NZDC 531 the District Court confirmed the Tribunal’s decision that section 60A as currently worded applies irrespective of the date the tenancy commenced.
However, neither the Tribunal nor the District Court specifically referred to the transitional provision in Schedule 1AA, Clause 34 RTA. The transitional provision says that the amended s60A does not apply to “tenancies granted before the commencement date”.
I invited the landlord to address me on the Cabaret decision and the effect of the transitional provisions. The landlord chose not to.
I am bound to apply the District Court decision, unless it is distinguishable in some way. The landlord did not refer me to any distinguishing features.
I have also considered the transitional provisions, and whether they apply to this case. Put another way; was this tenancy granted before the commencement date of 11 February 2021?
The tenancy started or commenced in 2019. However, this fixed term was granted by the landlord in October 2021; after the commencement date for the amended s60A. I find that the “extension” document signed in October 2021 amounted to a renewal of the tenancy and the granting of a further fixed term by the landlord.
In reaching this conclusion, I note that the landlord provided a Healthy Homes statement with the October 2021 “extension”. The Healthy Homes statement is required for renewals under the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Renewal indicates the grant of a new lease.
Further, the term “grant” suggests positive action by the landlord. If the landlord had done nothing in October 2021, the tenancy would have become periodic. Instead, the landlord granted a further fixed term. 1 The key provision is section 60A(2) which from 11 February 2021 sates: (2) [On the expiry of the FTT the tenancy becomes a periodic tenancy] However, the tenancy does not continue as a periodic tenancy if,— (a) before the expiry, the parties renew or extend the existing tenancy agreement; or (b) before the expiry, the parties agree not to continue with the tenancy; or (c) at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminates the tenancy on or before the expiry or that would do if the tenancy were already periodic.
The landlord did not establish that the unamended (pre 11 February 2021) version of s60A applies to this tenancy.
The amended/current s60A allows the landlord to terminate the tenancy in limited circumstances. One of those criteria includes section 50(1)(b), which in turn refers to section 51, which include the general grounds for termination of periodic tenancies by notice. This would mean for example, that a landlord could give notice before the tenancy ended, terminating the tenancy on one of the grounds it could be terminated if it were a periodic tenancy. As an example, because the owner of the premises wished to move into the premises as their primary place of residence (s51(1)(a)).
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.
In this case, the landlord gave notice on 11 December 2023 and said that the owner was “looking to sell”. That suggests that sale may have been one of a range of options. The landlord did not provide any evidence in relation to sale of the property (either with its application or at the hearing).
The landlord has not established that it is entitled to possession of the property. The application is dismissed.

Order

The application is dismissed.

Reasons

Representatives of the landlord attended a hearing by telephone. The tenants did not attend. I attempted to contact the tenants by telephone during the hearing, but the calls were not answered.
The landlord has applied for possession of the premises. The landlord claims that the tenancy expired at the end of a fixed term on 10 March 2024. The landlord says that it gave notice that the tenancy would not be renewed or extended, within the prescribed period.
The landlord provided copies of a tenancy agreement and various renewals with its application but did not take me through the evidence during the hearing. The landlord has the onus of proving its application and must provide the Tribunal with the evidence and submissions to establish its claims.
The documents included a tenancy agreement between the tenants and Metropolis Property Management Limited dated 3 December 2019. The tenancy was for a fixed term to 16 November 2020. At the end of the first fixed term the original parties signed a “tenancy extension” document for a further fixed term to 16 December 2021.
On 8 October 2021 Progressive Realty Limited and the tenants signed an “Extension of Fixed Term Tenancy Agreement” for the premises. That document recorded the current tenancy end date of 16 November 2021 and the extended tenancy end date of 31 November 2022. The “extension” document also recorded a rent increase and had a Healthy Homes Statement attached, which recorded the healthy homes compliance date of the tenancy as 14 February 2022.
Two further “extensions” were signed by the parties on 12 November 2022 and in October 2023. The final “extension” recorded a tenancy end date of 10 March 2024.
On 11 December 2023 the landlord sent an email to the tenant advising that the tenancy would not be extended as the landlord was “looking to sell”. On 15 December, the landlord sent another email to the tenant noting that the fixed term was due to expire on 10 March 2024, asked whether the tenant wanted to extend the tenancy and gave advice on the tenant’s obligations for giving notice to end the tenancy. The tenant replied that it wanted to extend.
The landlord replied with another email on 15 December advising that the first email was sent in error and said that the lease would not be extended as the owner will be selling the property.
The tenants did not move out on 10 March 2024, so the landlord made this application.
Under s60A Residential Tenancies Act 1986 (RTA), as it applied prior to 11 February 2021, there were generally three situations arising at the end of a fixed term tenancy, either; a. The parties agreed to renew or extend the fixed term tenancy; or b. The landlord or tenant gave notice during the effective period (90 – 21 days before the fixed term end date) that the tenancy would be ending, in which case the tenancy ended on the fixed term end date; or c. No notice is given during the effective period, so at the end of the fixed term, the tenancy became periodic.
There were significant changes from 11 February 2021 directed to security of tenure for tenants. The most notable change to s60A RTA, is that a landlord is no longer able to end the tenancy at the end of the fixed term period, unless that is agreed to by the tenant, or if other limited circumstances apply. 1 This means that if the tenant wants to remain in the tenancy, then notwithstanding the wishes of the landlord, the tenancy becomes a periodic tenancy.
In El Amor Limited v Garon John Cabaret [2023] NZDC 531 the District Court confirmed the Tribunal’s decision that section 60A as currently worded applies irrespective of the date the tenancy commenced.
However, neither the Tribunal nor the District Court specifically referred to the transitional provision in Schedule 1AA, Clause 34 RTA. The transitional provision says that the amended s60A does not apply to “tenancies granted before the commencement date”.
I invited the landlord to address me on the Cabaret decision and the effect of the transitional provisions. The landlord chose not to.
I am bound to apply the District Court decision, unless it is distinguishable in some way. The landlord did not refer me to any distinguishing features.
I have also considered the transitional provisions, and whether they apply to this case. Put another way; was this tenancy granted before the commencement date of 11 February 2021?
The tenancy started or commenced in 2019. However, this fixed term was granted by the landlord in October 2021; after the commencement date for the amended s60A. I find that the “extension” document signed in October 2021 amounted to a renewal of the tenancy and the granting of a further fixed term by the landlord.
In reaching this conclusion, I note that the landlord provided a Healthy Homes statement with the October 2021 “extension”. The Healthy Homes statement is required for renewals under the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Renewal indicates the grant of a new lease.
Further, the term “grant” suggests positive action by the landlord. If the landlord had done nothing in October 2021, the tenancy would have become periodic. Instead, the landlord granted a further fixed term. 1 The key provision is section 60A(2) which from 11 February 2021 sates: (2) [On the expiry of the FTT the tenancy becomes a periodic tenancy] However, the tenancy does not continue as a periodic tenancy if,— (a) before the expiry, the parties renew or extend the existing tenancy agreement; or (b) before the expiry, the parties agree not to continue with the tenancy; or (c) at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminates the tenancy on or before the expiry or that would do if the tenancy were already periodic.
The landlord did not establish that the unamended (pre 11 February 2021) version of s60A applies to this tenancy.
The amended/current s60A allows the landlord to terminate the tenancy in limited circumstances. One of those criteria includes section 50(1)(b), which in turn refers to section 51, which include the general grounds for termination of periodic tenancies by notice. This would mean for example, that a landlord could give notice before the tenancy ended, terminating the tenancy on one of the grounds it could be terminated if it were a periodic tenancy. As an example, because the owner of the premises wished to move into the premises as their primary place of residence (s51(1)(a)).
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.
In this case, the landlord gave notice on 11 December 2023 and said that the owner was “looking to sell”. That suggests that sale may have been one of a range of options. The landlord did not provide any evidence in relation to sale of the property (either with its application or at the hearing).
The landlord has not established that it is entitled to possession of the property. The application is dismissed.

Tenancy Tribunal case 4832640 — Healthy homes at 70 Lucca Crescent, Rolleston, Rolleston 7615

At a glance

Tenancy Tribunal case 4832640 — Healthy homes at 70 Lucca Crescent, Rolleston, Rolleston 7615

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