What was the outcome of Tenancy Tribunal case 4933181?

The tribunal order states: The 63-day notice to terminate the tenancy dated 29 April 2024 is extended

How much money was awarded in case 4933181?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4933181?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4933181?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10661379-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4933181?

The tribunal order states: The 63-day notice to terminate the tenancy dated 29 April 2024 is extended

How much money was awarded in case 4933181?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4933181?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4933181?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10661379-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 5 Marlborough Crescent, Richmond, Richmond, Tenancy Tribunal Case 4933181 — Exemplary damages

Order

The 63-day notice to terminate the tenancy dated 29 April 2024 is extended so the effective end date will now be 5pm Friday 30 August 2024.
By the mutual agreement of the parties, the tenancy may be ended before 30 August 2024 by the tenant providing the landlord with no less than two working days written notice to terminate.
All other claims are dismissed.

Reasons

Both parties attended the hearing, conducted via teleconference. Ms Sharon MacPherson is the joint owner and she appeared with the current landlord.
The landlord sought a possession order and exemplary damages after a 63-day notice to terminate expired and the tenant remained at the premises.
An applicant bringing a claim to the Tribunal has the burden of proving their claim on the civil standard of proof which is the balance of probabilities (that is, that it is more likely than not). It is up to an applicant to provide the evidence necessary to prove their claim to the required standard. If an applicant fails to do that, then the claim must be dismissed whether it has merit or not.
When assessing whether the burden of proof has been discharged, the Tribunal considers and evaluates the information and evidence presented by both parties, and is also required to take into account the substantial merits and justice.

Was the notice to terminate valid?

On the basis that the 63-day notice to terminate issued by email to the tenant on 29 April 2024 (after 5pm) is valid, the landlord seeks immediate possession of the property. The tenant submits that the notice is invalid for service, and of no effect.
The single address for service recorded in the tenancy agreement dated 19 April 2024 was that for the second tenant who was removed by agreement from the tenancy on 15 December 2022. Mr Daly remains since then as the sole tenant. At that time the landlord was the owner, the aforementioned Ms MacPherson.
On 20 April 2024, the current landlord commenced under a property management agreement with the owner. The landlord sent an email that day to the tenant’s email address that had been in use prior. The usual initial tasks such as ban details for rent were exchanged and the email process useful.
On 29 April 2024, after 5pm (relevant for determining service dates), the landlord emailed the tenant a 63-day notice the tenancy would end on 3 July 2024. The notice conformed to the required content and service dates. No delivery or read receipt was requested.
The landlord relies on the notice emailed to the tenant that day.
The issue is whether the email address adopted by the landlord is, for the purposes of the Act, an address for service.
The landlord has provided evidence showing that the tenant and landlord have previously corresponded by email. The landlord states that they have previously sent notices to the tenant using the email address and to their knowledge these were received by the tenant. The landlord submits that despite the email address not being formally recorded in the agreement, or formally acknowledged by the tenant as an address for service, it has nevertheless been confirmed by the tenant as a means of contact and has therefore become an address for service. The landlord submits that the email notice had been sent to an address confirmed by the tenant and should therefore be deemed as having been validly served.
The tenant states that the email address used is not an address for service as prescribed in s 13AB RTA. The tenant states that he did not receive the 63-day notice by email on 29 April 2024
The next contact between the parties after the notice was sent was via text on 8 May 2024 when the landlord mentioned the notice, amongst others matters. On 10 May 2024 the tenant replied that he had not received any notice.
Further time lapses until an email from the landlord on 27 May 2024 followed up again on the notice. In part, it said, “And also just a friendly reminder regarding the 63 day notice issued, that the last day of the tenancy will be Wednesday 3rd July 2024. If you have any further questions please let me know.”
The tenant responded the same day, writing, “I'm a little bit confused here, I haven't received a 63-day notice at all and in your text message you said you had sent a 90 day notice, which I also haven't received and I assumed you must of accidentally text to me incorrectly.”
The landlord replied, “I sent the 63 day notice via your email, as do not send notices via text.”
The alternate position of the tenant was clearly stated on 14 June 2024, when he wrote in an email to the landlord, “The tenant details form is also missing, it is very important as it shows that my email address is not my address of service therefore the notice you incorrectly served via email is invalid...”
From that point each party has maintained their position with no apparent attempt to resolve it before 3 July 2024. Subsequent emails confirmed their respective stance. Law
Firstly, given the tenant cited retaliatory motivations in the notice I reiterate again that s 54(1) of the Act states that within 28 working days after the receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51, the tenant may apply to the Tribunal for an order declaring the notice retaliatory. Even adopting the later notice date of 27 May 2024, any such retaliatory claim is out of time. I equally ignore here suggestions from the tenant that the landlord’s claimed reasons for the notice are invalid. The evidence at hand and clear urgency of Ms MacPherson to obtain possession refutes this. Section 136 (1) of the Act provides: 136 Service of documents (1)Where any notice or other document is required or authorised by this Act to be given to or served on a landlord or a tenant, it shall be sufficient if it is given or served in any of the following ways: (a) It may be given to or served on the landlord or the tenant personally: [(b) it may be sent by post addressed to the landlord or the tenant at the address or the Post Office box given by the landlord or the tenant as an address for service in accordance with this Act:] [(ba) if the landlord is a company, it may be sent by post addressed to the landlord at the address of the landlord’s registered office:] [(c) it may be delivered to the premises to which any address for service relates, and either placed in the mailbox or attached to the door in a prominent position:] [(ca) if the landlord is a company, it may be delivered to the landlord’s registered office, and either placed in the mailbox or attached to the door in a prominent position:] [(d) it may be transmitted to the email address or facsimile number given by the landlord or the tenant as an address for service.]
Section 136(2) provides additional ways that notices may be served on a tenant. [(2) Without limiting the provisions of subsection (1) of this section, any notice or other document required or authorised by this Act to be given to or served upon any tenant may be served on a tenant: (a)At the premises to which the tenancy agreement relates, if the tenant resides at those premises, as follows: (i)By posting it addressed to the tenant at those premises; or (ii)By delivering it to those premises and either placing it in the mailbox or attaching it to the door of those premises in a prominent position; or (iii)By giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or (b)At any other place of residence of the tenant, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises and who confirms that the tenant resides at the premises; or [[(c) at the premises to which any address for service given by the tenant relates, by giving it to any person appearing to have attained the age of 16 years and to be residing at those premises; or]] (d)By giving it to the person who ordinarily pays the rent under the tenancy agreement; or (e)By giving it to any solicitor or other agent of the tenant duly authorised by the tenant to receive the same.]
Section 136(9) of the Act states that where any document is delivered at any address, in accordance with this section, it shall be deemed, in the absence of any evidence to the contrary, to have been given or served on the second working day after the date on which it was delivered.
Section 136(9) provides that where any document is transmitted by email, in accordance with this section after 5pm on any day, it shall be deemed, in the absence of evidence to the contrary, to have been given or served on the next working day after the date on which it is transmitted.
Section 13AB of the Act states: 13AB Address for service (1)For the purposes of this Act, an address for service means any address given by the landlord or tenants under this Act as an address for service at which notices and other documents relating to the tenancy will be accepted by or on behalf of the landlord or tenant, as the case may be . (2)Whenever a party is required to give an address for service, the party – (a)must give an address of a physical place in New Zealand; and (b)may, in addition, specify a Post Office box number, email address, or facsimile number as one of the party’s address for service.
A strict interpretation of an email address for service is made because, unlike for routine communication between landlord and tenants, an address for service is deemed as served for subsequent enforcement. It essentially shifts the onus from the sender onto the recipient to ensure they receive such emails. It is akin to how tenants are expected to monitor their physical mailbox for any notice served by post.

Was the 63-day notice correctly served?

Section 13AB of the Act clearly requires that the party to the tenancy agreement provide a physical place as an address for service. In addition to any physical address, the party concerned may also provide an email address as one of their addresses for service.
Section 16 (1) of the Act clearly makes a distinction between a contact address and an address for service. It would have been better for the current landlord to have the tenant confirm the use of his email as an address for service when she commence in April this year. The inclusion of that email address in the bond lodgement does not confer acceptance or provision of the same per s 13AB
In the absence of any express acknowledgement, I am not satisfied that the contact details confirmed by the tenant, in this case the email address, impliedly, or by default through common usage, necessarily became an address for service.
The service of notices or documents on a tenant by email is not provided for under section 136 (2) of the Act.
For those reasons I am not satisfied that the 63-day notice sent by email on 29 April 2024 was validly served.
Given the urgency of the owners, and the clearly stated position of the tenant, the issue of service could have been resolved by an amended notice in May. Ironically, this would have ended the tenancy correctly before this hearing. As the drafter of the notice, I consider the onus is on the landlord to have reacted and rectify rather than adopt the definitive stance. Such a step could even have been made in the alternative, meaning if this application failed, the amended or fresh notice would have provided a backstop.
I mentioned three possible outcomes to the parties. One, the landlord application was successful and a possession order would be made. Two, I deem the notice of 29 April 2024 of no effect, essentially sending everything back to the starting line. The third outcome would be an adjustment of the end date in that notice as envisaged by s 54(7) RTA.
Further, when considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
Of the three options, I have adopted the third. I am very aware of the owners’ angst and urgency in obtaining immediate possession for her daughter but I cannot in fairness transfer that onto the tenant. He clearly stated his position once notified of the end of tenancy and I consider he was entitled to do so. Options were available once his position was stated.
I have reset the end date to 30 August 2024, a reasonable period for the tenant but an early exit provision is also provided. From here, he, and the landlord, are encouraged to maximise their efforts to facilitate an early exit. The prior staunch positional stances have not been helpful. Other matters
The landlord’s claim for exemplary damages for the tenant failing to quit (per s 40(3A)(a) is dismissed.
I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 4933181 — Exemplary damages at Unit/Flat 2, 5 Marlborough Crescent, Richmond, Richmond,

At a glance

Tenancy Tribunal case 4933181 — Exemplary damages at Unit/Flat 2, 5 Marlborough Crescent, Richmond, Richmond,

At a glance

Claims & awards

Order

Reasons

Was the notice to terminate valid?

Was the 63-day notice correctly served?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the notice to terminate valid?

Was the 63-day notice correctly served?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions