What was the outcome of Tenancy Tribunal case 4891840?

The tribunal order states: The Worx Property Management Limited to pay Irene Singh Madhaven and

How much money was awarded in case 4891840?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4891840?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4891840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10860377-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4891840?

The tribunal order states: The Worx Property Management Limited to pay Irene Singh Madhaven and

How much money was awarded in case 4891840?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4891840?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4891840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10860377-Tenancy_Tribunal_Order.pdf.

11 Regis Park Drive, Pukekohe, Pukekohe 2120 Tenancy Tribunal Case 4891840 — Cleanliness

Order

The Worx Property Management Limited to pay Irene Singh Madhaven and Surendra Singh $300.00 immediately being exemplary damages for breach of s47 Residential Tenancies Act 1986.
The tenants claims for breach of s60AA (terminating without grounds) and 38 Residential Tenancies Act 1986 (breach of quiet enjoyment) are not proven and are dismissed.
The landlord’s claim for failing to give access or reasonable conditions for access for the sale of the property is not proven and is dismissed.

Reasons

Both parties attended the hearing on the 23 September 2024.
The tenants lived at the property for four years from April 2020 to 26 April 2024. During that time the property was sold twice, in December 2020 and again in July 2021. In July 2023 the owners of the property moved to Australia and appointed property managers to manage the property whilst they were overseas.
In November 2023 the rent was increased from $660.00 per week to $700 per week.
In January 2024 the landlord gave notice to the tenants that they would conduct a property inspection and complete a market appraisal at the same time which they did on the 19 January 2024.
Following the market appraisal the landlord told the tenants that they were putting the property on the market for sale.
The tenants co-operated with the landlord during the sale process, but as often happens there was a mismatch between the number of viewings and the times and dates of viewings that the landlord / vendors wanted to conduct, and the tenants were able to accommodate. As a result the landlord gave notice to the tenants pursuant to s51(2)(a) of the RTA to end the tenancy as the property was being marketed for sale.
The tenants found an alternative property, and gave 28 days’ notice in return, with the tenancy ending on the 26 April 2024.
The landlord started readvertising the property for sale and marketing on the 2 or 3 May, after new photographs were taken on the 1 May, as the tenant had asked that the landlord not to advertise the property with her belongings shown.
On the 12 May 2024 the tenants saw that the property was relisted for rent on Trade Me at a rental of $150.00 more per week than the rental that they had paid. They claim that the landlord’s notice of the 22 March 2024 was invalid as the landlord did not intend to put the property on the market, but rather wanted the tenants to leave so the landlord could relet for a higher rental.
The landlord says that the property has been continuously marketed for sale from the 2 or 3 May 2024, but that as the owners needed income off the property it was relisted for rent and was only re-tenanted for $800 per week on the 17 June, some seven weeks after the tenant’s left the property. The landlord says that when the landlord’s gave their 90-day notice on the March that they had budgeted on the tenant remaining in the property until the expiry of the 90 days (June 2024). When the tenants left early, they could not afford to have the property without rental and therefore relisted it.
The tenants claim: a. That the landlord failed to comply with s47 of the RTA by giving them written notice of putting the property on the market for sale in January 2024. b. That the landlord breached s 60AA by giving an invalid notice because the notice of termination stated the reason as the house being put on the market for sale, but the house was advertised only two weeks later for rent. c. The landlord breached their quiet enjoyment (privacy) by using photographs of the property that included their belongings when they had asked them not to do so.
The issues to be determined therefore are: a) Did the landlord comply with s47 RTA when the property was put on the market in February 2024? b) Did the landlord intend to sell the property, when it gave notice on the 22

March 2024?

c) Does the subsequent listing of the property for rent, mean that the notice is given 22 March 2024 became invalid? d) Did the landlord breach the tenant’s quiet enjoyment of the property when it listed the photographs with the tenant’s belongings? Did the landlord comply with s47 RTA when the property was put on the market in February 2024?

Section 47 RTA says: If, at any time after entering into a tenancy agreement, the landlord puts the premises on the market for the purposes of sale or other disposition, the landlord must, as soon as practicable, give written notice of that fact to the tenant.
The landlord put the property on the market for sale on the 2 February 2024. It confirms that it never officially gave notice to the tenant that it had put the property on the market for sale, but submits that the tenant was aware that the property was going to be put on the market for sale from the 19 January when it was discussed at a property inspection and that there was evidence of the verbal communications between the tenants and the property manager about the open homes and viewings and the sale between the property manager and the sales agent on the 9-15 February and that the tenant was fully aware that the property was on the market for sale.
I am satisfied that the landlord breached s 47 by not giving written notification of putting the property on the market for sale within a reasonable time.
It is an unlawful act for a landlord to breach s47(1). Exemplary damages may be awarded, up to a maximum of $1800.00 (see s47(3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
Having regard to the above factors, I award the tenant $300.00 for this breach, this reflects that whilst there was a breach, the tenant was aware that the property was on the market and was in discussions with the property manager and the sales agent. The landlord should have had appropriate systems in place to ensure compliance with the RTA especially when the landlord and the sales agent were from same company. It is in the public interest that small award be made to deter landlord’s from failing to comply with their obligations. Did the landlord intend to sell the property, when it gave notice on the 22 March 2024?
Section 51(2)(a) Residential Tenancies Act (RTA) says: (2) A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if— (a) the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale or other disposition; or
Section 60AA of the RTA says: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
This means that in order for the tenant to be successful in their claims pursuant to s60AA they must show that at the time that the landlord terminated the tenancy that they were not entitled to give that notice.
The Tribunal has had to determine many cases where landlord has given notice under one of the grounds in section 51 RTA but later changed it to another, such as when the landlord has given notice for family members to move in but later the tenants found that the property was relet. Each case will be determined on its merits and facts, but there are some common factors that can be taken from these cases: a. At the time of giving the notice, the landlord must have the intention to carry out the grounds relied upon. b. That if the grounds change before the tenancy actually terminates then the landlord must inform the tenant that the situation as changed and if necessary, retract the termination notice; c. That if the property is subsequently relet after the tenancy terminated then the tribunal should look at why the landlord has not been able to carry out its intention, and in particular will look at evidence from the landlord, as to whether it has gone through with its intention.
Having considered all of the evidence I am satisfied that at the time that the landlord gave the tenant notice that the landlord intended to put the property on the market for sale, I say this for the following reasons: a) the landlord listed the property for sale, and it has been listed since the 2 May 2024 and remains on the market today. b) The landlord redid the photographs and marketing material for sale at additional expense after the tenants left. These photographs are used in the new listings. I do not consider that a landlord who simply wanted to re-rent for a higher rent per week would incur this expense. c) Since it has been rented the landlord has not removed the property from the market for sale. Does the subsequent listing of the property for rent, mean that the notice is given 22 March 2024 became invalid?
I am satisfied that the landlord’s relisting of the property for rent was in addition to and not instead of marketing the property for sale. The termination notice was given under the grounds that the landlord was placing the property on the market for sale which they did. I do not consider that a landlord who intends to sell a property, should be prohibited from reletting a property whilst they have the property on the market. There is no provision in the RTA which prohibits a landlord who is marketing the property for sale from renting the property. The landlord said that the reason for the property being sold was due to the high interest rates, and I consider it reasonable that a landlord who is facing financial challenges as a result of the interest rates increases would want to avoid having long periods of time without any rental income.
Whilst the timing and the higher advertised rent would be alarming to the tenant, and on the face of it appears to be the landlord gaining an advantage at the expense of the tenant, that in reality is not the case. The landlord did not have any rental income from 26 April to 17 June, a period of 7.3 weeks meaning that they lost $5110.00 1 in rental income over the time the property was vacant.
The landlord would have been able to raise the rent on 24 November 2025 2 . Between June 17 and November is 23 weeks, so the landlord gained $2300.00 in rent extra over this time, but as noted above is still at a disadvantage as they lost $5100.00 in income. The net loss to the landlord from putting the property on the market, giving notice to the tenants and then re tenanting is $2800.00.
Whilst the tenant claims that the landlord’s asking price for the property was unrealistically high and therefore was never going to sell, the RTA makes it very clear that the landlord who exercises the right under s 51(2)(a) must intend to sell. That is all, so if a landlord can show the Tribunal that they have put the property on the market and have marketed the property then they will have complied with their obligations. In this case the landlord engaged a real estate agent to market the property, they expended money in having photographs taken (twice) and completing marketing material and they have not removed the property from the market. 1 Calculated at rent of $700.00 per week. 2 12 months after the last increase.
There was evidence from the real estate agent that a notice to terminate was given because the agent wanted to conduct open homes and viewings when needed, and it was easier without a tenant in place. The landlord also gave evidence that a property that is being marketed for sale can be more attractive to a buyer with a tenancy at a higher rent.
As I am satisfied that the landlord intended (and did) put the property on the market in accordance with the notice given in s51(2)(a) then the landlord’s notice was valid and therefore the tenants application that the landlord’s notice was invalid and a breach of s60AA is dismissed. Did the landlord breach the tenant’s quiet enjoyment of the property when it listed the photographs with the tenant’s belongings?
The tenant allowed the landlord to take photographs of the property for marketing in February with her belongings in the house.
Shortly after the landlord gave notice the tenant asked the landlord not to use photographs with her goods as part of any future marketing. The landlord did not start re marketing the property for sale until after the tenancy ended. Approximately 4 photographs used in the marketing campaign after the tenancy ended show photographs of the outside of the property, which had the tenant’s belongings in them, and in one photograph you can see the tenant’s belongings through the window. The tenant objects to those photographs being used. The tenant claims that the landlord has beached her privacy under s38 RTA.
Section 38 (2) RTA says: The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
As the landlord used the photographs after the tenancy ended then it cannot be said that any breach of the tenant’s privacy occurred during the tenancy and affected the tenant’s use of the property. For that reason, there is no breach of the RTA and therefore the tenant’s claims for breach of quiet enjoyment fails.
If the tenant claims that the landlord has breached her privacy after the tenancy ended that claim is a matter best suited for the Privacy Commissioner to determine. The landlord’s claims
The landlord filed submissions before the hearing where the landlord advised that they ‘counterclaimed’ for the costs of taking the additional photographs after the tenant asked them not to use photographs of the property which included her belongings. The landlord claims that the tenant breached their obligations (s48 RTA) by failing to give consent for open homes in the weekends and by seeking that the landlord does not use her photographs in the marketing material after the tenancy ended.
At the beginning of the hearing, I advised the parties that I would not hear this matter as the landlord had not filed a claim, and also that the tenants had had insufficient time to consider the claim and make any submissions.
However, later in the hearing it became clear from the parties that they wanted me to make a determination on that point and therefore I now do so in order to end the claims between the parties and to avoid the necessity of the parties attending further hearings.
I find that the tenant was reasonable in her requests that open homes be not held in the weekend and that photographs of her belongings not be used after the tenancy ended.
The tenant works from home and tells me that she works on Saturday and Sunday (as the type of work is done more in the weekend) whilst there was some communication between the sales agent and the property manager where the sales agent expressed concern about not having open homes in the weekend, the tenant did allow open homes every Friday between 5.30 and 6pm. There were 4 open homes and during that time at the tenant told me no interested parties attended. The tenant even invited the sales agent for a meal (which was confirmed by the text messages that she sent). I do not consider that the tenant was being difficult, rather she could not have her workdays interrupted by open homes. The tenant says that she told the agent that if he had an appointment viewing, he could do this during the weekend.
The tenant said that the open homes required a lot of tidying and making the property look presentable, she could not continue to work whilst an open home was going on (because anyone could come in) but could do if it was a viewing, as she would know who was coming and when and could work around that.
I do not consider that the tenant was unreasonable in asking the landlord to not market the property with her belongings. I consider that when a landlord gives notice to terminate under s51(2)(a) they should expect that the tenants may not want them to use photographs which showcase their belongings and furniture. Whilst I suspect that part of the reason motivating the tenant to ask the landlord to not use the photographs was to make it harder for the landlord because she was upset about being given notice, the tenant was still allowed to ask the landlord to remove her belongings from any photograph.
I observe that when a landlord gives notice that the property is to be sold that this can be very stressful and difficult on a tenant. There is an intrusion into the tenant’s life and time that is not off their own making, and offers no benefit to them. The tenant often is asked to allow regular open homes or viewings, which means that they lose control over who comes into their home and looks at their belongings, they may feel obligated to keep the property to a higher standards of cleanliness or tidiness that they would usually have in living their day to day lives. They may be asked to leave the property for open homes or viewings. Landlord’s should be aware of these pressures and not have the expectation that tenant’s will willing comply with all of the sales agents expectations in order to get a quick sale or a higher price. I am satisfied after looking at all of the correspondence that the tenant acted very reasonably. This was a tenant who paid her rent on time, allowed open homes every week and kept the property in an immaculate condition. Filing fee
I do not allow the tenant the filing fee as she has not been mainly successful in her claims.

Tenancy Tribunal case 4891840 — Cleanliness at 11 Regis Park Drive, Pukekohe, Pukekohe 2120

At a glance

Tenancy Tribunal case 4891840 — Cleanliness at 11 Regis Park Drive, Pukekohe, Pukekohe 2120

At a glance

Claims & awards

Order

Reasons

March 2024?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

March 2024?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions