Unfair Tenancy Tribunal Decisions?

[Allen Realty Ltd Prop]

Had any Tribunal outcomes that you just can’t understand??? Decisions that seem one sided, unfair or just don’t make sense??

I meet new and experienced property investors all the time and many have nightmare stories about the Tenancy Tribunal and decisions that have gone against them. With the changing nature of Property Management, (with specific focus on amendments to the Act & rising LL obligations) many private Landlords
(who once managed their own properties) now employ professional property managers as recent decisions by adjudicators have put them off.

Some of the most recent stories I have heard have prompted me to start this thread as I believe that if we share our stories Landlords will all learn from each other.

Property Investors can learn from others mistakes or misfortunes so please share any outcomes you may have had...

[Allen Realty Ltd Prop]

A Landlord I was talking to the other day made an application to the Tribunal for recovery of cleaning costs, damages and the likes as the tenant left the property in a terrible condition.

Photos were provided with inspection reports and costs for cleaning the property and making good the damage. The tenant turned up and had the nerve to say they the photos were of a different property and that he was not present at the inspection so didnt agree. Despite invoices etc as well as photo evidence and inspection reports the adjudicator (who I wont name) ruled that as the tenant was not present during the inspection and disputed the condition he would not rule in favour of the Landlord and award compensation and recovery of the debts. This is outrageous!

There is no requirement of the RTA for tenants to be present during bond inspections or Initial Inspections for that matter. Hence this Landlord is being discompensated for doing something that the law says he can do!

As a property manager I used to arrange bond inspections with outgoing tenants to avoid these problems. However, 9 out of 10 of my tenants would not turn up to pre-arranged appointments or would be an hour late so I eventually stopped doing this.

As property managers, agents and/or private Landlords surely we can only do what we can only do! If a tenant doesnt request to be there during a bond inspection or alternatively doesnt turn up then we should not be punished.

Simon Allen
Allen Realty Ltd

Aucklands Specialist Property Managers
"Property management by investors for investors"

[Keely]

Unfair decision

Funny that you should start this thread today as I have just after 9 months of carry on received our latest verdict from from the TT. We had a tenant in a brand new property and after 4 weeks (long story) took him to mediation and got him out. Therefore in a brand new property, for a very short period.. our story goes:

Carpets need to be cleaned as there were stains (photo evidence, invoice, and statement from cleaner). Were ruled against as the tenant had a photo taken of the whole of the inside of the property and not specific photos zoomed in. Tenants photos were however taken when the furniture was still in house, a week before they shifted out and not of the room in question.

Tenant severely damaged hob. TT stated that the tenant swore by oath that they did not mean to damage it and it happened on one instance. There is multiple deep scratches which anyone can see has been done due to using force and over and over again. 20% compensation. Result is that the hob needs to be replaced, had quotes, and comments from the supplier.

Cleaning no compensation. Needed a commercial cleaner. House was so filthy that you could not even see the shower plug through the glass door. Had photos, invoice and a wittiness.

Re-painting all damage. Minimal cost rewarded. Apparently a good paint job should last 7 - 10 years, and there is normal wear and tear to be expected (on a new property on that short of time frame??).

Result is of $2,600 of damage. We were awarded $600.

What to do now.... get over it, move on, and choose better tenants next time!!!

[spurner]

YES, I agree. The TT is a farce. I say that they should respect and follow THE LAW.

I recently had a terrible case where a tenant moved out by providing 24 hours notice and when the rent was in arrears. He claimed there was an infestation and it was uninhabitable, which was completely ridiculous as there never has been and still isn't any infestation, which has been backed up by tradespeople. The tenant relocated to Auckland.

The tenant didn't move in until several days after the start of the tenancy, and the TT adjudicator says the tenant doesn't have to pay rent until he moves in, even if it's after the start date of the tenancy!

The tenant claims dubious cleaning costs at the TT and is awarded these costs without providing any receipts.

To top it all off the tenant is awarded ~$2,000 in compensation.

I have now completely and utterly lost all faith in the TT. The law is biased enough to start with, why aren't TT adjudicators accountable to follow THE LAW.

Part of me hopes that enough LL's will have a gutsful of the situation, stop being landlords, causing a chronic shortage of rentals, rental price increases, and people will then realise what a valuable service we provide, and stop vilifying us at every opportunity.

[Davo36]

Man, and here am I looking to build 5 or 6 apartments. Don't know what I'd do if someone moved into a new one and trashed it. I'd find it hard not to be really really angry about it.

[Keely]

Hi Davo. Same thing happened here! brand new apartment and it was horrible to see it in the state that it was in after only 4 weeks. Really disheartening....

But on the brighter side to remind ourselves why we do this... the other 7 apartments within the complex have been really looked after, and have absolutely wonderful tenants who also love staying there!!

I have found that tenant selection just becomes so much more important and being picky is okay!!!

[Glenn]

Come on you guys.
There is always a better way.
You have to make hay whilst the sun shines.
Sometimes you just have to rub it in.
Last week I had a case. The stupid tenant made a claim against me three weeks before the end of the three year long tenancy. Claimed compensation for her breaking the garage door opener and not being able to use it and so the list goes on.
I made a counter claim for $3800.
Just after she started into her claim I declared to the adjudicator that I found it really difficult having to prove my innocence and said this was the only court in the Western world where defendents had to prove their innocence rather than the applicant having to prove the claim.
Well that produced a response from the Ajudicator. She bristled and said all claims in her court had to be proved. Things went real well from that point forward. When really pressed to explain a certain point I responded with a hearty standard answer. Any reasonable person would expect this. Why should a landlord suddenly be accused of not providing some facility in the final three weeks of a long tenancy and have to pay the penalty. No reasonable person should expect this.
The RTA is sprinkled with the term reasonable. This word is undefinable but carries a powerful punch. You have to learn to apply words like this.
The other issue that many landlords fall down on is only claiming what is reasonable. You have to bulk out your claims so when it gets knocked back you end up with about the right amount of money.

Have fun. See you in court next week.

[Keys]

Tenant stayed on after the expiry of FTT.

Went for possession within the allowable time frame (90 days)

Adjudicator tried to tell me that, because I had accepted rent from the tenant after the expiry of the FTT I had offered a periodic tenancy.

I referred the Adjudicator to S60 (3).

Adjudicator "hold on a minute, I'll go and get my copy of the RTA" left the room.

My application referred to S60.

Adjudicator came back, muttered and told me the decision would be reserved. I said I'd wait.

The decision came back in my favor 2 hours later.

[Perry]

Glenn

As I understand it, you were part of the group
making representations about the RTA reform
Bill. Did the asinine aspects of TT Rulings get
any attention?

[brendan]

It would be interesting if you could reference the tenancy tribunal application numbers in your stories, so that we could see the "official" version of events at http://www.tenancytribunal.govt.nz.

[Allen Realty Ltd Prop]

Yes Glenn is right that this will result in Landlords bumping up their claims in order to get what it reasonable.

Although I firmly believe that the majority of hearings our company attends we get the fair result I also know that some rulings are absolutely outrageous. Although Tenancy Services on the whole does a great job it is these few unbelievable outcomes that make investors lose faith. I also feel mediators do a great job, although some may come across as part social worker, part mediator, on the whole they are great.

Landlords should not have to bump up claims but unfortunately my experience over a decade of appearing at the Trib is that if tenants turn up they ALWAYS get something. For example, they have no written evidence, no photos or reports but with just a sob story they get a couple of hundred dollars off the arrears or associated costs. It seems that the Tribunal may have an unwritten policy that if the tenant turns up they want to award them something just so tenants feel that system is not against them. This is not a new thing and we have seen it for years. If they don’t feel they are listened to (doesn’t matter if they right) they will not come to another future hearing as they wouldn’t believe in the system. This may be a reason for some crazy outcomes.

I have seen this result in owners adding extra hours on to cleaning costs, rubbish removals etc as they often feel they may only be awarded 50-75% of these costs. This is not a healthy approach for the future of NZ tenancy law and will only get worse if attention is not given to the system. Allens property managers are now trained to present their case, and then confirm how the law applies - for emphasis and to strengthen a case. Some adjudicators resent this but it is sometimes necessary as other adjudicators seem to ignore moot points of law.

Perhaps the worst situation in my opinion is that the Act requires either party to send a 10 day letter for a breach in an agreement. If a tenant breaches then the Trib will not even consider compensation without a 10 day letter being sent by the landlord. However, if a Landlord breaches it is another story. A tenant can argue at the tribunal (even if it is not true) that he has called the Landlord on many occasions to report a stove element not working or a tap dripping. Even though he has not sent the required 10 day notices for the Landlord to remedy this breach (so some would argue the LL didn’t know) he is compensated by way of discounts off rent arrears etc.

Here are our top 5 recommendations for the Tribunal

1/ The adjudicator is always communicated as "Yes Sir, No Sir"
2/ Applications (and applicants) to be well presented and complete eg. inspec reports, notices, diaries/dates/evidence - pre-arranged in organised/rehearsed presentation. Number your evidence and structure your claim. The Tribunal in many cases is "HE Said - She Said" and for this reason is about benefit of the doubt and a well organised individual has the advantage.
3/ Never loose your rag! Let the tenant lose theirs! Always say too little rather than too much! Emotion stays at the door at the Tribunal and if you loose your temper, you loose your way and get flustered and a pre-prepared case goes out the window. The Adjudicator may also see a side of you they don’t like. When the tenant loses control a Landlord must stay reasonable and it will reflect in a positive way in the eyes of the Tribunal.
4/ don’t provide photos or other evidence with an application. Provide only what the Trib needs for the application like an inspection report, agreement, ledger and letters. Keep the photos until you get there. The more you provide the more the tenant will have time to concoct excuses/stories. Why give them time to create a defence days in advance.
5/ Use excel spreadsheets to provide invoices from the owners for time taken to clean/travel across town and organise clean ups etc. All of these should be added to your claims for the maximum compensation. Some owners provide petrol claims too.
6/ If you get the chance in the tribunal to discount a tenant ever so slightly so that their might be an agreement between two parties then take the opportunity. Any tenant can request a re-hearing for a hearing they are not happy with, but if there is an agreement between two parties then a re-hearing will never be granted. Eg, Say to the adjudicator, if the tenant agrees to pay off all of these debts in the next 4 weeks then I will reduce the debt by $150. They then record the outcome as an "agreement between two parties" on the order.
7. Last but not lease - Never be Late. If you are you loose the benefit of the doubt the minute you walk in the door.

Remember, the Tribunal should be an exception rather than the rule and a proactive Landlord is a lot less likely to find them selves there. If tenants know you are proactive they are less likely to not pay rent and other breaches. If you are a cruizy, mellow relaxed landlord and your tenants know this then they will take advantage. An emphasis on the tenant selection process is an important exercise in risk reduction so never be worried about declining an application. Tenant Insurance is gold, even though in an ideal world we wouldn’t need it!

To all those Landlords out there that have never been to the Tribunal a pat on the back as this is reflection that you are doing a great job. However, remember, there is no such thing as the perfect tenant and it only takes 5 mins for an excellent tenant to turn in to your nightmare tenant. However, what you put in to the relationship is usually what you get out of it.

Good luck,

The Allen Realty Team
"Property management by investors for investors"

[Keys]

Perhaps the worst situation in my opinion is that the Act requires either party to send a 10 day letter for a breach in an agreement.

Agree with all except that statement.

Please point me to your reference for your statement.

[Sharon]

Interesting thread, comes back to another point I made a while back that an occassional visit to the Tribunal watching experienced PMs present a case is a useful excercise to those of us less experienced. In my neck of the woods the adjudicater wont allow it, yet another breach of the law in that the TT is supposed to be open and transparent. When my husband pointed this out she flew off the handle yet wasnt able to refute the point other than she liked to conduct business in her court in private.

[Perry]

So was he allowed to stay???

In simple terms, most adjudicators seem
to be 'schooled' that they and their little
kangaroo kourts are above the law.

I recall it was mentioned once before. Any
idea what the national "gender balance"
of adjudicators is? Seems to me to be
female sociopathic-engineer dominated.

[Glenn]

Glenn

As I understand it, you were part of the group
making representations about the RTA reform
Bill. Did the asinine aspects of TT Rulings get
any attention?

I am never part of a "group"
I am a loner.
When we were asked for suggestions on the RTA a long time ago I think 3 or 4 years ago I worked my way through the act and made several suggestions. I am not sure if I was the only one to make certain suggestions but I did notice a couple of items I suggested got into the review. I was included as part of what was "parties with a special interest in the act" consultation a couple of years ago but was not included this time.
I made my four points this time and was encouraged to hear other people saying similar things about abandoned goods. I do claim of course that the other parties whilst experienced appeared to not be experiencing the level of abandoned goods that I see.
I asked and was granted a personal audiance with the select committee.
I was given less than 24 hours notice to fly to Wellington to make my oral submissions. As always I smelt a nasty dead rat with the way they gave me such short notice. We all got 15 minutes to make our case. That includes some stupid questions from the select committee.
So to answer your question.
No there was no time to talk turkey about the operation of the act and the stupid things that go on. I did make my point about operating the re hearing and appeal more like other courts to give the law more credibility.
There certainly is a problem with some of the adjudicators suffering from PMT. Making up the law instead of following it then not providing for any sort of decent redress for miscarriage of justice is a very dangerous un democraitc process. It hits at the very core of our civilization and the law that has been in existance for thousands of years.
At least there is no bribery in NZ but we do need to make sure our judicary are in touch with our society.
Many times the adjudicator says to me that she has no understanding of the issues that I bring before her like drugs, incest, violence, and moronic behavour. They have a real problem with understanding ecconomic issues like cost of housing to buy and lease at a profit.