What was the outcome of Tenancy Tribunal case 4894320?

The tribunal order states: The landlord’s application for a possession order is declined.

How much money was awarded in case 4894320?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4894320?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4894320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10569757-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4894320?

The tribunal order states: The landlord’s application for a possession order is declined.

How much money was awarded in case 4894320?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4894320?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4894320?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10569757-Tribunal_Order.pdf.

Unit/Flat 5, 134 Dixon Street, Te Aro, Wellington 6011, Tenancy Tribunal Case 4894320 — Healthy homes

Order

The landlord’s application for a possession order is declined.

Reasons

The background in this case is reasonably involved, but for the purpose of this application, can be summarised succinctly as follows: a. Mr Erwood has a tenancy with the landlord. The tenancy commenced on 5 October 2015. Importantly, this was for “Flat 5, 134 Dixon St” in Wellington. b. On 31 March 2023 the parties entered into a variation of that tenancy agreement. That is headed “Annexure to Tenancy Agreement”, and states: The Landlord is renovating the Rented Premises and for safety / urgency, has requested the tenant to move for a short period of time, to another property owned by the Landlord under a fixed term tenancy. The tenant has agreed to move to the Fixed Term Tenancy Premises on the terms and conditions set out in the Annexure to Tenancy Agreement” The document then sets out the ‘terms and conditions’, which include an end date being “when a suitable property has been identified by Advisor Customer Liaison, matched, offered and accepted by the customer”. c. On 23 January 2024, the landlord gave the tenant a notice terminating his tenancy. The notice states : As you know, there are plans to carry out major work at your current home. We understand this may be unsettling for you and your whanau and we want to work closely with you to support you to move to another home. When we talked about the need to move, you understood you would move to another home. We have been working with you to find a home that meets your needs. We have offered you the following home and you have declined them. • 11 Church Street, Wellington, 6011 Unfortunately, we have not been able to get your agreement to move to another home. Notice to end your tenancy. We are giving you formal notice that the tenancy at Flat 5, 134 Dixon St will end on 30 April 2024. We will continue to look for another home with you before the tenancy ends. d. When Mr Erwood failed to return possession of Flat 66, 134 Dixon St, the landlord applied to the Tribunal for a possession order requiring that possession of Flat 66 be returned.

ANALYSIS

The matter I must determine, is whether a possession order can be made in relation to Flat 66, 134 Dixon Street. For the reasons I advised at the hearing, the notice terminating the tenancy is flawed, and therefore I cannot order that possession return to the landlord.
There are two ‘flats’ that are relevant here, that is the original tenancy premises being flat 5, and then the later premises being flat 66.
In my view, what happened on 31 March 2023 is that the original tenancy agreement was varied, that variation did two key things: a. Changed the tenancy from flat 5 to flat 66; and b. Changed the tenancy to being a fixed-term tenancy.
The landlord has advised that it seeks to shut this entire apartment complex which is 117 flats. The landlord states it is not Healthy Homes compliant, and further there are earthquake concerns. The landlord is contemplating selling the complex. It was on that basis that the notice on 23 January 2024 was issued.
The landlord argues that the notice of 23 January 2024 was a section 53B notice. Section 53B is a provision that would allow the landlord to terminate the tenancy if it was a periodic tenancy, providing certain conditions apply and the tenant was to be moved to another suitable tenancy.
However two problems arise with the notice.
Firstly, the notice terminates the tenancy at flat 5. That does not seem contentious for Mr Erwood, because he is not living in flat 5. But ultimately the landlord has not given Mr Erwood notice terminating his tenancy at flat 66. When a landlord is terminating a tenancy, for the Tribunal to uphold a termination, the process must be properly followed, which means the notices must be accurate.
But there is a second problem for the landlord, although we did not discuss that today at the hearing. Section 53B allows the landlord to order a termination of the tenancy providing it was a periodic tenancy. In this case the landlord entered into a fixed term tenancy for flat 66, and strictly that fixed term agreement is continuing. The fixed-term agreement is unusual in that it provides that the end date for the tenancy is when another property is offered, and “accepted by the customer”. From what I have seen no alternate property has been offered and accepted, meaning the end date has not yet been triggered.
For the reasons as set out above, the landlord’s notice to terminate is flawed as far as a termination of flat 66 is concerned, so the Tribunal declines to order possession of this tenancy return to the landlord.

Order

The landlord’s application for a possession order is declined.

Reasons

The background in this case is reasonably involved, but for the purpose of this application, can be summarised succinctly as follows: a. Mr Erwood has a tenancy with the landlord. The tenancy commenced on 5 October 2015. Importantly, this was for “Flat 5, 134 Dixon St” in Wellington. b. On 31 March 2023 the parties entered into a variation of that tenancy agreement. That is headed “Annexure to Tenancy Agreement”, and states: The Landlord is renovating the Rented Premises and for safety / urgency, has requested the tenant to move for a short period of time, to another property owned by the Landlord under a fixed term tenancy. The tenant has agreed to move to the Fixed Term Tenancy Premises on the terms and conditions set out in the Annexure to Tenancy Agreement” The document then sets out the ‘terms and conditions’, which include an end date being “when a suitable property has been identified by Advisor Customer Liaison, matched, offered and accepted by the customer”. c. On 23 January 2024, the landlord gave the tenant a notice terminating his tenancy. The notice states : As you know, there are plans to carry out major work at your current home. We understand this may be unsettling for you and your whanau and we want to work closely with you to support you to move to another home. When we talked about the need to move, you understood you would move to another home. We have been working with you to find a home that meets your needs. We have offered you the following home and you have declined them. • 11 Church Street, Wellington, 6011 Unfortunately, we have not been able to get your agreement to move to another home. Notice to end your tenancy. We are giving you formal notice that the tenancy at Flat 5, 134 Dixon St will end on 30 April 2024. We will continue to look for another home with you before the tenancy ends. d. When Mr Erwood failed to return possession of Flat 66, 134 Dixon St, the landlord applied to the Tribunal for a possession order requiring that possession of Flat 66 be returned.

ANALYSIS

The matter I must determine, is whether a possession order can be made in relation to Flat 66, 134 Dixon Street. For the reasons I advised at the hearing, the notice terminating the tenancy is flawed, and therefore I cannot order that possession return to the landlord.
There are two ‘flats’ that are relevant here, that is the original tenancy premises being flat 5, and then the later premises being flat 66.
In my view, what happened on 31 March 2023 is that the original tenancy agreement was varied, that variation did two key things: a. Changed the tenancy from flat 5 to flat 66; and b. Changed the tenancy to being a fixed-term tenancy.
The landlord has advised that it seeks to shut this entire apartment complex which is 117 flats. The landlord states it is not Healthy Homes compliant, and further there are earthquake concerns. The landlord is contemplating selling the complex. It was on that basis that the notice on 23 January 2024 was issued.
The landlord argues that the notice of 23 January 2024 was a section 53B notice. Section 53B is a provision that would allow the landlord to terminate the tenancy if it was a periodic tenancy, providing certain conditions apply and the tenant was to be moved to another suitable tenancy.
However two problems arise with the notice.
Firstly, the notice terminates the tenancy at flat 5. That does not seem contentious for Mr Erwood, because he is not living in flat 5. But ultimately the landlord has not given Mr Erwood notice terminating his tenancy at flat 66. When a landlord is terminating a tenancy, for the Tribunal to uphold a termination, the process must be properly followed, which means the notices must be accurate.
But there is a second problem for the landlord, although we did not discuss that today at the hearing. Section 53B allows the landlord to order a termination of the tenancy providing it was a periodic tenancy. In this case the landlord entered into a fixed term tenancy for flat 66, and strictly that fixed term agreement is continuing. The fixed-term agreement is unusual in that it provides that the end date for the tenancy is when another property is offered, and “accepted by the customer”. From what I have seen no alternate property has been offered and accepted, meaning the end date has not yet been triggered.
For the reasons as set out above, the landlord’s notice to terminate is flawed as far as a termination of flat 66 is concerned, so the Tribunal declines to order possession of this tenancy return to the landlord.

Tenancy Tribunal case 4894320 — Healthy homes at Unit/Flat 5, 134 Dixon Street, Te Aro, Wellington 6011,

At a glance

Tenancy Tribunal case 4894320 — Healthy homes at Unit/Flat 5, 134 Dixon Street, Te Aro, Wellington 6011,

At a glance

Claims & awards

Order

Reasons

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions