What was the outcome of Tenancy Tribunal case 4868264?

The tribunal order states: The tenancy of WILLIAM TUCKER at 6D Brixham Place, Merrilands, New

How much money was awarded in case 4868264?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4868264?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4868264?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10415976-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4868264?

The tribunal order states: The tenancy of WILLIAM TUCKER at 6D Brixham Place, Merrilands, New

How much money was awarded in case 4868264?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4868264?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4868264?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10415976-Tenancy_Tribunal_Order.pdf.

6D Brixham Place, Merrilands, New Plymouth 4312 Tenancy Tribunal Case 4868264 — Healthy homes

Order

The tenancy of WILLIAM TUCKER at 6D Brixham Place, Merrilands, New Plymouth 4312 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59pm on Wednesday 12 June 2024.

Reasons

Both parties attended the hearing. The landlord had a support person.
The landlord has applied for possession of the premises following the termination of the tenancy.
The landlord says it served a 90-day notice on 29 February 2024 which terminated the tenancy from 3 June 2024. The termination notice relied on section 53B of the Residential Tenancies Act 1986 (RTA).
Section 53B RTA provides: (1) The landlord under a periodic tenancy may terminate the tenancy by giving at least 90 days’ notice if— (a) the tenancy— (i) was granted before 14 April 2014 and is a tenancy of Kāinga Ora housing; or (ii) was granted as a tenancy of social housing to a tenant assessed under the Public and Community Housing Management Act 1992 as eligible to be allocated social housing; but (b) following the grant of the tenancy,— (i) the social housing provider is notified under section 103 of that Act that the tenant is no longer eligible for social housing; or (ii) in the case of community housing, the community housing provider ceases to be a registered community housing provider; or (iii) the social housing provider requires the tenant to transfer to different social housing provided by that provider, and the provider considers that— (A) the transfer is necessary or desirable for any reason; and (B) the other housing is appropriate for the tenant’s housing needs as most recently assessed (regardless of when that assessment took place). (2) In this section,— agency, community housing, community housing provider, Kāinga Ora housing, registered community housing provider, social housing, and social housing provider have the meanings given to them by section 2(1) of the Public and Community Housing Management Act 1992 as most recently assessed means— (a) as most recently assessed by the agency and notified to the provider under section 103 of the Public and Community Housing Management Act 1992; or (b) if there has been no such assessment and notification under that section in relation to the tenant, as most recently assessed by HNZ HNZ has the meaning that it had under section 2(1) of the Public and Community Housing Management Act 1992 as in force on 13 April 2014.
This section was inserted by s 35 of the Residential Tenancies Amendment Act 2020 (RTAA 2020) and came into effect on 11 February 2021.
In essence, this section enables a social housing periodic tenancy (as defined in the section) to be terminated by the landlord on 90 days’ notice if the tenant is no longer eligible for social housing or, the social housing provider requires the tenant to transfer to a different social housing, or, in the case of community housing, the provider ceases to be a registered community housing provider. The landlord’s position
The landlord says the tenancy began on 29 May 2015 the landlord says it was granted as a tenancy of social housing to a tenant assessed under the Public and Community Housing Management Act 1992 as per section 53B(1)(a)(ii). The tenancy agreement filed is a periodic tenancy and there was no suggestion by either party that a fixed tenancy applies.
The landlord says it needs the tenant to transfer to other social housing provided by the landlord, because the landlord wants to undertake work to the property to comply with the Healthy Homes Standards that it has not been able to undertake.
The landlord says that the required termination notice, as provided to the Tribunal, was taped to the door of the property and also put in the tenant’s mailbox by the Senior Housing Support Manager, Sheryl Handley. The landlord says although the letter provided is dated 27 February 2024 it was in fact taped to the door and put in the mailbox on 29 February 2024.
The landlord says they initially had a property for the tenant to move into in Glenpark Ave but now that house is not available. The landlord says this was originally offered to the tenant on 12 April 2024. The landlord says that there is however now a 2-bedroom home in Bell Block available. The landlord says that the properties are suitable for the tenant based on an assessment of his housing needs. The landlord says that the property in Bell Block is actually a 2-bedroom property, and the tenant is in fact only entitled to a one-bedroom property, so it is over and above what has been assessed as being suitable.

Should the hearing proceed as scheduled?

The tenant had the notice of today’s hearing and began by disputing the fact that section 53B RTA was not specifically listed as a section of the RTA on the letter telling him about the hearing in the section labelled “claims raised”.
I am however satisfied that the application may proceed as scheduled because I find that the tenant has had adequate notice of the landlord’s application before the Tribunal: a. First, the notice of hearing refers to section 64 which is the provision of the RTA that deals with possession. It also refers to the fact the landlord is seeking possession and termination. b. Second, and in any event, when such a notice is served, it is also served with the papers connected to the application including the application notice itself. I do not find the tenant’s submissions that he did not receive these papers to be credible. He has a copy of the notice setting out the date of the hearing dated 16 May 2024, Tribunal records show that the tenant was served with notice together with the landlord’s application and supporting documentation. The application itself clearly sets out that the landlord is seeking termination/possession under section 53B, RTA.
The tenant also submitted that the landlord’s application should be adjourned and heard with his own application which is yet to be heard by the Tribunal. I decline this because I consider that the landlord’s application can be considered independently.
The tenant expressed disbelief that the landlord’s application had been scheduled so quickly but his own application was yet to be heard. This is a matter of scheduling, which is not relevant to this decision. While the landlord filed their application prior to the termination date it was filed with a request to only list the application for a hearing after 3 June 2024. Parties often do file applications in advance knowing that it takes time for an application to be listed. This is not relevant to this decision. The tenant’s position
The tenant says that he did not receive the termination notice that the landlord says was taped to the door or placed in the mailbox.
The tenant also says that there was also no offer of a property made to him in that the 90-day notice.
He says that the offer that was made on 12 April 2024 did not comply with the requirement to give the 90 days’ notice.
The tenant says that the offer was then withdrawn. I asked him about when he knew the offer was withdrawn and he was very cautious in his response. He originally was evasive not willing to offer any timeframe at all saying he could not recall dates because a freedom of information request he had made had not been dealt with, but then he said it was withdrawn “pre-4 June”. He then moved on to say that he actually wasn’t sure if it was withdrawn, and he was not actually aware it was not available before today. He then went on to say he had a hunch that the landlord was going to withdraw it prior to today due to their dishonesty and behaviour in the Tribunal.
The tenant also says that the landlord has had access to his home for HHS. Analysis
I accept that this is a social housing tenancy to which s 53B, RTA can apply.
I do not find the tenant’s position that he did not receive the notice of termination credible, and I prefer the evidence of the landlord that it was taped to the door and placed in the tenant’s mailbox on 29 February 2024 because: a) Despite the tenant saying he had not been served with the notice during the course of the hearing the tenant also said that he would adduce evidence to show me that the notice was taped on the door on a different day. This was in direct response to the landlord saying the letter was taped to the door. He says he knew that to be “completely incorrect” because he had documentation that shows the date it was taped to the door. I asked for that documentation and he then spent some time looking for that evidence. He then only produced documents, relating to income related rent, being posted to a PO Box. I consider that this PO box address is not relevant to this decision. There is no suggestion that the letters relied upon here were posted to a PO Box. Where this is relevant is that the tenant’s evidence that the notice was not taped to the door on the day stated directly contradicts the tenant’s other statements that he did not receive the notice at all. a. The tenant’s credibility when it comes to the receipt of termination notice is also impacted by the fact that he says that he did not receive the documents with the notice of hearing when, for reasons set out above, this is not credible. As set out above, documents including the notice of hearing were sent together, and he clearly had received the notice of hearing. b. The tenant received a letter offering alternate accommodation on 12 April 2024. If the tenant had only received the letter dated 12 April 2024, and not the letter in February, I would expect some direct response in respect of this letter. There was no evidence of this. c. I find that the tenant was also evasive and contradictory in his evidence relating to the withdrawal of the Glenpark Avenue offer making his evidence in relation to not receiving the notice of termination less credible. d. The landlord was open and frank. For example, disclosing at the outset that the letter dated 27 February 2024 was not taped to the tenant’s door until 29 February 2024 and advising that the Glenpark property was no longer available at the start of the hearing.
I therefore find that the tenant was served with the notice. I must now consider the tenant’s position in relation to the content of the notice and the reason for the transfer.
I reject the tenant’s submission that the termination notice is not valid because it does not contain an address that he has to move into. This is because I find this is not a requirement of section 53B RTA.
The termination notice gave the tenant 90 days’ notice and set out that “You will be offered another property that meets your needs prior to this tenancy ending”. It set out what would happen next in terms of the tenant being offered an alternative property.
I find that this is sufficient to satisfy the provisions of section 53B, RTA.
First, the RTA does not require that the proposed transfer address be set out in the 90-day notice. If this was Parliament’s intention I find that this would have been set out in the legislation when the clause was drafted and inserted by RTAA 2020.
Further, when the RTA was being amended by RTAA 2020 to insert section 53B, the Social Services and Community Committee examined the Residential Tenancies Amendment Bill (7 July 2020) and recommended a number of amendments in relation to the RTAA 2020 and the proposed section 53B, RTA. It was noted that: The Public and Community Housing Management Act 1992 (PACHMA) already allows Kāinga Ora and registered community housing providers (CHPs) to transfer a tenant to different housing within their housing portfolio if they consider this necessary or desirable for any reason. This transfer is effected either by the parties agreeing to the transfer, or the social housing provider using a 90-day no cause termination under the Act and offering a new tenancy. ... We recommend amending clause 35, section 53B(1)(b)(iii), to specify that a landlord under a periodic tenancy may terminate the tenancy by giving at least 90 days’ notice if the social housing provider requires the tenant to transfer to different social housing. The provider must consider that the transfer is necessary or desirable, and that the other housing is appropriate for the tenant’s housing needs.
These recommendations of the Committee were adopted and were incorporated into section 53B.
I find that this shows that the legislative intent was to be able to allow social housing providers to give notice to terminate a tenancy when there has been a decision by them that there is desirability/necessity of transfer and there is appropriate housing for transfer. I find that the landlord here is simply required to have the desire/necessity for the transfer and to be sufficient certain of a transfer to suitable housing as assessed and then to provide notification of the decision to transfer to suitable housing appropriate to the tenant’s needs as assessed. The fact that a transfer to suitable housing was sufficiently certain is shown by the offer of the house on 12 April 2024, which I have no reason to find was not suitable. Therefore, I find that the content of the letter terminating the tenancy provided sufficient information.
The tenant also challenges the landlord’s reason for the transfer, but I find this also cannot be successful. This is because this is a decision for social housing provider.
This is made clear by section 53B(b)(iii) RTA which states that ‘the provider considers that...’. (1)(b)(iii) the social housing provider requires the tenant to transfer to different social housing provided by that provider, and the provider considers that— (A) the transfer is necessary or desirable for any reason; and (B) the other housing is appropriate for the tenant’s housing needs as most recently assessed (regardless of when that assessment took place). [Emphasis added]
This is also reflected in the Social Services and Community Committee’s report referred to above which refers to the provider having the control over this test: Clarifying the role of the Tenancy Tribunal in cases where a tenant is transferred We propose that the Tenancy Tribunal would not be able to review a social housing provider’s reasons for transferring a tenant, including consideration of whether an alternative social housing home offered to a tenant meets the tenant’s housing needs. We consider that the Tribunal should focus on whether the Act’s obligations are met, while existing processes can be used to determine the property’s suitability. We recommend amending clause 35, section 53B(1)(b)(iii), to specify that the determinations that the transfer is necessary and the housing is appropriate be made by the provider. We recommend amending clause 35, section 53B(1)(b)(iii), to specify that the determinations that the transfer is necessary and the housing is appropriate be made by the provider. [Emphasis added]
This recommendation was also adopted into the RTAA 2020/RTA.
Therefore, I find that it is not for the Tribunal to consider the reasons for the transfer or whether the alternative housing offered meets housing needs. In any event, there is no reason to doubt that the housing offered is suitable according to tenant’s housing needs as assessed.
Therefore, I find that the termination notice is valid. This means that the tenancy ended on 3 June 2024. This is less than 90 days ago. The requirements of section 64(1) of the Residential Tenancies Act 1986 are satisfied.
At the hearing the landlord expressed that there was a suitable home still available for the tenant to move into. I have granted the landlord possession in a week’s time to allow the tenant time to discuss with the landlord the possibility of transferring into that new accommodation.
The landlord did not apply for the filing fee so I have not ordered this.
Neither party applied for suppression, so I have not ordered this.

Tenancy Tribunal case 4868264 — Healthy homes at 6D Brixham Place, Merrilands, New Plymouth 4312

At a glance

Tenancy Tribunal case 4868264 — Healthy homes at 6D Brixham Place, Merrilands, New Plymouth 4312

At a glance

Claims & awards

Order

Reasons

Should the hearing proceed as scheduled?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the hearing proceed as scheduled?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions