What was the outcome of Tenancy Tribunal case 5067254?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 5067254?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5067254?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Mould & damp, Boarding House.

Where can I read the official tribunal order for case 5067254?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11654898-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5067254?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 5067254?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5067254?

The primary dispute was 14-day notice. Related themes: Exemplary damages, Mould & damp, Boarding House.

Where can I read the official tribunal order for case 5067254?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11654898-Tribunal_Order.pdf.

15 Protea Place, Bell Block, New Plymouth 4312 Tenancy Tribunal Case 5067254 — 14-day notice

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Reasons

Both parties attended the hearing.

The tenant seeks exemplary damages for termination of their tenancy because the notice given, they say, is invalid and retaliatory. Civil burden of proof

As explained at the hearing, 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.” That means that in this case the tenant must establish that what they are claiming is more likely than not.

The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any 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.

This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “like 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.” Facts and analysis

On 23 August 2024, the landlord gave the tenant a notice, ending the tenancy on 22 November 2024.

The landlord’s notice referred to the property needing extensive renovations. The tenant says that the notice was not validly given because extensive renovations were not in fact needed. The tenant also claims the notice is retaliatory.

The tenancy then ended on 4 October 2024 when the tenants left. The tenants applied to the Tribunal on 11 November 2024.

Under Section 60AA Residential Tenancies Act 1986 (RTA) a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.

At the time this tenancy was terminated, section 55(2)(f) RTA holds: A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.

The tenant says that the landlord’s gave this notice because when maintenance work had been done in the past the tenants had imposed a cap on the number of days the landlord could be present to do the work. This had involved the painting of the exterior of the property in February 2024 and then painting hallway walls and the bathroom walls in July 2024.

The tenant says the landlord readvertised the property for rent with a start date which was 12 October 2024.

The landlord says that the notice was not retaliatory. The tenants had been in the property from 2018. The tenancy was terminated for extensive work on the property. That work could not be done with the tenants remaining in occupation.

The landlord says that the work they did following the tenancy end included replacing beams underneath the property because foundation blocks had moved under the kitchen, bedroom and hallway, and ripping up (and later re- laying) the hallway floor and taking out the moisture barrier to do this. A water pipe was burst in the process. The landlord says that the tenant would have had to remove their furniture for this to take place. The landlord also says that they had to deal with a mould issue in the bathroom. These issues had been noted in July when the interior was part painted. I heard how this is a Lockwood home with wooden walls. Mould had impacted the bathroom so that advice had to be taken from Lockwood about treatment. The landlord says that part of the shower liner and head had to be removed, the bathroom needed sanding, then sealing twice, priming and painting. I heard that work was also done to the vanity. The landlord says the sealant was toxic and that the property was left empty once this had been done, getting a local family member to do the second coat later (as the landlord lives out of the area).

While the landlord was at the property, they say they also undertook smaller renovations such as new fronts to kitchen cupboards, sanding the cupboards and sealing them, and new window handles and light switches and plug sockets.

This work was supported by invoices (some rendered by the landlord’s own maintenance company and some by independent tradespeople) and some receipts. A number of photographs were also provided. The landlord says this work was started and continued for several days immediately after the tenant moved out and then completed a while later.

The landlord says she did not think the start date of any new tenancy through when advertising. She just put in a date. A new tenant moved in on 25 October 2024.

I have no reason to doubt the landlord’s evidence that this work was required. I consider that the nature of the work involved amounts to extensive repairs and refurbishment and it would not be reasonably practicable for the tenant to remain in occupation while the work was done.

I therefore find that the notice given is valid. The tenants claim for exemplary damages is dismissed.

The tenants claim for exemplary damages for retaliatory notice must be dismissed for technical reasons. This is a claim under section 54 of the RTA which at the relevant time holds: 54 Tribunal may declare retaliatory notice of no effect (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.

To award exemplary damages for such a breach the notice must be declared to be of no effect (see section 54(3) RTA).

As can be seen from that provision, any claim for retaliatory notice needed to be lodged within 28 days. The claim in this case was lodged out of time, and for that reason, the claim is dismissed (notice dated 23 August 2024 and application filed 11 November 2024).

The 28-day period for filing is mandatory – see Realty House Whakatane Ltd v Eschbank [2020] NZDC 16081: In my view, s 54 is jurisdictional, and absent an application made within the time limit I consider that the Tenancy Tribunal has no jurisdiction to entertain any application for a declaration that notice is of a retaliatory nature. While I accept that the Tribunal does have the power to extend time limits, it seems to me that those provisions should not ordinarily be used in relation to consideration of issues arising under s 54, with the possible exception of a very short overrun of a day or two caused by circumstances beyond a tenant's control, such as documents being lost in the post or computer or internet outage or inaccessibility.

Here there was no minor overrun. The application was made very late and made after the tenants had left the tenancy. I find there is no good reason for the overrun. The tenants’ application was made well outside the time limit and so I have no jurisdiction. This means that this claim must be dismissed.

However, it is reasonable to observe that even if I could adjudicate this case, I would have dismissed it anyway. I consider that the notice given was not retaliatory. The evidence leads me to the conclusion that the landlord’s notice was given for a legitimate and lawful reason, that is that the landlord wanted to undertake the above work to the property. Suppression

Section 95A RTA provides the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

The tenants seek suppression of their identifying details but have not been wholly or substantially successful. I see no other reason to award suppression of their identifying details. Accordingly, the tenants’ request for suppression is declined.

The landlord did not seek suppression, so I do not have to decide this.

Reasons