What was the outcome of Tenancy Tribunal case 4836300?

The tribunal order states: Barfoot & Thompson Limited is removed from these proceedings as agent for the

How much money was awarded in case 4836300?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4836300?

The dispute type was not classified.

Where can I read the official tribunal order for case 4836300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11144977-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4836300?

The tribunal order states: Barfoot & Thompson Limited is removed from these proceedings as agent for the

How much money was awarded in case 4836300?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4836300?

The dispute type was not classified.

Where can I read the official tribunal order for case 4836300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11144977-Tribunal_Order.pdf.

30 Seine Road, Forrest Hill, Auckland 0620 Tenancy Tribunal Case 4836300 — Tenancy dispute

Order

Barfoot & Thompson Limited is removed from these proceedings as agent for the landlord.
The application is dismissed.

Reasons

Both parties attended the hearing which took place at North Shore District Court on 29 November 2024.
At the time of the tenancy, Barfoot & Thompson were the agent for the landlord. Barfoot & Thompson are no longer the agent for the landlord, and I have removed them from the proceedings.
On 20 June 2024, the parties attended a case conference with a different Adjudicator. Following this conference, the Tribunal issued an Order instructing the Registry to issue a witness summons to former Barfoot & Thompson employee, Mr Han. The Order records that as Mr Han’s contact details were not available, the summons was to be served on Barfoot & Thompson.
Ms Hetaraka, Head of Property Management for Barfoot & Thompson, and Ms Kennedy, Head of Property for Barfoot & Thompson, attended the hearing. Ms Kennedy advised that Mr Han only worked for Barfoot & Thompson for a short period of time, that she had tried to find his contact details to pass the witness summons on to him but was unable to locate him.
The Order of 20 June 2024 also set out that the issues for the substantive hearing are as follows: a. Was the fixed-term tenancy renewed verbally for a further 12 months? b. If so, was the termination notice under section 51(1)(a) of the Residential Tenancies Act 1986 (RTA) valid? c. If not, did the landlord terminate the tenancy under section 51(1)(a) of the RTA to have the premises as the principal place of residence for at least 90 days for her or a member of her family? Civil burden of proof:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The party bringing the claim, in this case the tenants, must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

Was the fixed-term tenancy renewed verbally for a further 12 months?

The tenancy agreement provides that the tenancy was for a fixed term: from 20 July 2022 to 25 July 2023.
On 31 March 2023, the tenants received an email from Barfoot & Thompson asking if they wished to end the tenancy on the expiry date, extend for a further fixed term or remain on a periodic term. In the email, the tenants were advised that if they wished to extend the tenancy, Barfoot & Thompson would seek agreement from the landlord.
The tenants said they clicked on the button stating that they wished to renew for a further period of 12 months.
The tenants said that on 18 April 2024, they had a telephone conversation with Mr Han. The tenants said they told Mr Han that they had indicated some two weeks earlier that they wished to renew the tenancy and had not heard anything further. The tenants said Mr Han said he would call them back.
The landlord said in April she had a telephone conversation with Mr Han. The landlord said that during this call, Mr Han said he had taken over from the previous manager, that the tenants had asked if she would be willing to renew the tenancy and that he wanted a response immediately. The landlord said she responded by saying “... maybe, but since its another year should we review the rent”. The landlord said Mr Han said he would let the tenant know that she was “looking for a rent rise”.
The tenants said Mr Han called them back [presumably after he had the telephone call with the landlord referred to above] and told them that the landlord “... will extend, they need to think about the rent increase”. The tenant said they responded by saying that they were willing to increase the rent by $100.00 per week provided that some maintenance work was done on the property.
The tenants say that after that conversation with Mr Han they did not hear anything further until 18 May 2024 when they received an email from another Property Manager at Barfoot & Thompson giving 63 days’ notice to terminate the tenancy because “... [t]he landlord and/or his/her family require the property for their own use”.
The tenants claim that they reached a verbal agreement with Mr Han to extend the tenancy for another year during the telephone call on 18 April 2024. I do not accept this. For a contract to be legally enforceable, there must be a clear offer, unequivocal acceptance, adequate consideration, an intention to enter into legal relations and certainty of terms.
For a tenancy agreement, one of the key terms is the rent. The tenants’ recollection is that Mr Han said the landlord had said they needed to look at the rent and the tenant had offered an additional $100 per week. This had not been accepted by the landlord. Therefore, there was no binding contract between the parties that the tenancy would be extended for another year.
This claim is dismissed. Did the landlord terminate the tenancy under section 51(1)(a) of the RTA to have the premises as the principal place of residence for at least 90 days for landlord or a member of the landlord’s family?
The tenancy was a fixed term tenancy commencing on 20 July 2022 with an expiry date of 25 July 2023.
On 17 May 2023, a Property Manager for Barfoot & Thompson sent an email to the tenants saying: The landlord and/or his/her family required the property for their own use. Section 51 of the Residential Tenancies Act 1986 requires that you be provided with a minimum of 63 days’ notice that possession is required on 25 July 2023.
Section 51(1)(a) of the RTA provides that a landlord may terminate a periodic tenancy by giving at least 63 days’ notice if: ... 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; or
Section 60AA of the RTA provides that giving or purporting to give a notice to a tenant to terminate the tenancy where the landlord knows they are not entitled under the RTA to do so is an unlawful act.
While section 51(1)(a) of the RTA applies to a periodic tenancy, the effect of sub- sections 60A(3) and (4) of the RTA is that either party may give notice under section 50(1)(a) to (b) of the RTA while the tenancy is a fixed term provided the end date is after the expiry of the fixed term.
Of course, for a termination notice to be valid, it must be genuine. The tenants claim that this notice was issued in bad faith and say that the landlord or her family did not move into the premises, instead the premises were rented out to another tenant.
The landlord says that the notice was given because the premises were required for her parents. The landlord says that at the time the notice was given, her parents were planning on an extended visit of more than 90 days from China from July 2023.
The landlord said that the premises were funded by her parents for them to live in when they come to Auckland. The landlord said that due to COVID-19 border restrictions in China, her parents had been unable to come to New Zealand for around 3 years.
The landlord said her parents’ trip was cancelled because her mother took some time to recover from COVID-19 which she caught in May 2023 and her father had a fall in June 2023. The landlord says that following her father’s fall, it became clear that her parents were no longer up to travelling back and forth between the two countries. The landlord said it was decided that her parents would apply for a parent resident visa with a view to moving to New Zealand permanently once that visa was obtained.
On 20 July 2023, the tenants vacated the premises. The landlord said that as her parents had decided not to come to New Zealand until they had the parent resident visa, she arranged for new tenants to move into the premises and they moved in at the end of August 2023. The landlord advised that the new tenants are paying $110 more per week than the tenants. However, it is only $10 more per week than the tenants had offered to pay.
The landlord says she had no reason to change tenants. The landlord said there was no financial incentive for her to do so as the gap between the two sets of tenants meant there was a gap in rental income and she also had to pay a letting fee to the agency of more than one week.
The tenants are required to establish the claim to the civil law standard of proof, on the balance of probabilities.
The tenants have not satisfied me that it is more likely than not that the reason the landlord gave for giving the termination notice was not genuine.
This claim is also dismissed.

Tenancy Tribunal case 4836300 — Tenancy dispute at 30 Seine Road, Forrest Hill, Auckland 0620

At a glance

Claims & awards

Tenancy Tribunal case 4836300 — Tenancy dispute at 30 Seine Road, Forrest Hill, Auckland 0620

At a glance

Claims & awards

Order

Reasons

Was the fixed-term tenancy renewed verbally for a further 12 months?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions

Order

Reasons

Was the fixed-term tenancy renewed verbally for a further 12 months?

Topics & place

Residential Tenancies Act sections

Property management

Frequently asked questions