Unfair Tenancy Tribunal Decisions?

[Allen Realty Ltd Prop]

Agree with all except that statement.

Please point me to your reference for your statement.

A very interesting question Keys. Again this highlights a grey area in the Act which is the ‘Reasonable Notice’ issue. Section 56 has a provision for termination of a tenancy by a landlord (if there’s a breach in the agreement) if the Landlord has issued notice “requiring the other party to remedy the breach within a reasonable period”. It then goes on to state that this notice must not be “less than 10 working days.” The Act does not actually state a tenant needs to issue this 10 day notice for breaches but it also refers to the tenant having to give ‘reasonable notice’.

For years mediators and other industry experts have encouraged tenants to send landlords 10 working day letters if necessary. Although there is no specific notice period set down in the Act for tenants, it seems to have become quite common that this ‘reasonable notice’ is interpreted as 10 working days as per section 56. As ‘reasonable notice’ can be interpreted differently by all parties and has the potential to cause problems, industry experts such as mediators and Tenancy Services personnel encourage tenants to give this 10 days notice. I guess they do this to achieve some sort of consistency across the board.

I called Tenancy Services yesterday to ask them about this just to see if this is still common practise from their end. The first representative did not know hardly anything about the Act and spent more time asking me why I wanted to know rather than shedding any light. His supervisor then gave me the following feedback. She confirmed tenants were obliged to give ‘reasonable notice’ and not specifically obliged to give 10 days under the provisions of the Act. This is where I had a good laugh. She then went on to say that she was of the opinion that the Tenancy Tribunal Adjudicators “in their infinite wisdom after many years of experience” tend to often use this 10 day period as a guide since it is referred to as ‘reasonable notice’ in other parts of the Act.

I guess this reinforces a couple of key points.

1/ “Infinite wisdom” – they think very highly of them selves.
2/ The Act needs attention as there are certainly grey areas. Reasonable notice is open to interpretation. Whose interpretation is correct? Not the tenants, not the Landlord, but the Tenancy Tribunal of course.

As I mentioned above I am confident that generally Tenancy Services does a fantastic job with the tools and resources they have and it is just a few decisions that let hard working property owners down. I am a strong advocate of the mediation system and feel that more often than not this is a cost/time effective way of getting a good resolution. I am certainly not bashing the Tribunal and Allen Realty gets a positive result (although the tenant often gets something if they turn up) 95% of the time. It is certain changes and clarifications to the Act that need attention in order to avoid Landlords getting unfair results a small proportion of the time.

I would also like to see it standard that once the Tribunal rules in favour of a landlord that a tenant has breached the Act that the tenant is required to reimburse the Landlord for the cost of the application. I have never understood that a Landlord not only has to give unpaid time and energy but they also suffer a financial cost even when it is ruled they are in the right.


Simon Allen
Allen Realty
"Property management by investors for investors"

[Allen Realty Ltd Prop]

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.

I was going to give an example of a recent decision but I have checked and it is not on this site yet. The hearing and order was dated 24/8/09. Anyone know how long they take to go up on this site?

I guess it is a worry that someone could have a tenancy terminated one week, apply for anew tenancy the next week and when the new Landlord does the Tribunal Check on line there is no reference to them having a tenancy terminated the week before.

[Keys]

A 10 day notice is for a breach of the Act or TA which is capable of remedy.

Having a noisy party (in breach of S 40 (2c)) is something which is not capable of remedy. It has happened.

A breach of quiet enjoyment (S38) is also something which is incapable of remedy. Again, it has happened.

You can't issue a notice for something which the tenant has not done (future parties/nosy landlord). So, your hands are tied until the breach happens.

Therefore I suggest that the Act does not require a 10 day notice to be sent by either party.

You may, however, issue a notice that the tenant/landlord has breached the TA/Act and request that it does not happen again.

Is it possible to have the tenancy terminated for breaches of notices which aren't 10 day notices?

Now, rent arrears. No 10 day notice is required when the tenant is 21 days behind in rent. Simply apply for termination.

Still looking for the reference for your statement.

Do you have a position on that?

[Austrokiwi]

I am guessing here..... so appreciate feedback just to hone my skills. Many of the problems mentioned here are similar to the Employment tribunal ( what ever its called) That Tribunal regularly takes the side of the aggrieved employee, however some employers are now taking the view all disputes will go to court, in an number of cases the earlier tribunal decision was ruled as incorrect in law. I suspect the same thing is happening with the tenancy tribunal..... in effect it is so expensive to go to court the Tennancy tribunal adjudicators feel very safe in believing their decisions will not be challenged.

[Perry]

As I recall, one of the things that the legislation did
(both Tenancy and Disputes Unobunals*) is make
it very difficult to appeal. And that's not counting
the affronts of awards of $990, being just $10 short
of the threshold for an appeal. Glenn has been eloquent
on that aspect, in the past.

* Both of the entities referred to are classic cases of government
deceit (or euphemisms, at best). The prefix tri- means three.
The gratuitous insult is easy to see, if one imagines a tricycle
having just one wheel. Or a triumvirate of one person. There is
only ever one adjudicator/referee at these kangaroo kourts.

[Son of G]

New Law a Step Closer

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.

Second version of the bill was reported back to the house on Friday.
It looks like they took into account the submissions and here is the result:

http://www.legislation.govt.nz/bill/government/2009/0034/latest/versions.aspx

The commentary makes good reading. They specifically mention car parts in the commentary. I have not yet read the finer detail.

[Viking]

If you think you have been wronged then appeal and make it known that you will appeal. These turkeys simply don't like that because ultimately they have a senior look at the case and you can ask for a court hearing if you are not satisfied with that. They are all lefties and half of them don't even know the Act properly, so don't get mad get even and challenge them when you think they are wrong. Oh they won't like it but they are supposed to be an unbiased court that adjudicates by the rules. So know the rules. No1.

[Perry]

If one takes that advice and reads the
rules, one will grasp that the right to
appeal is prescribed in those very rules.
And those rights are very limited.

[ParadiseLost]

Tribunal Tips

Having been to a hearing for the first time I can say that I don't feel that they're fair mediated outcomes at all. From the very beginning of the adjudication it was clear that the "mediator" had a bias for tenants and the onus of any proof is for the landlords to provide - IN WRITING. You're on the back foot just walking in the door and you'll need to prove you're not some slum landlord.

I do think that the tips offered below are very valid. Some additional points I would add are:

• Ensure everything is in writing - as far as the Tribunal is concerned as a landlord if its not in writing it doesn't exist - the tenant on the other hand can state anything they like and because they're "under oath" its accepted as truth - they don't even have to have written/photographic evidence.
• Get email statements from tradespeople if required - they apparently think the landlord will have witness like trades available to call on (yeah right) - an email statement is the next best (and likely only) thing to have. Ensure everything is dated (most email print outs are). Organise these in chronological order.
• If the adjudicator offers an opportunity to reach an 'agreement' between the parties do so. Compensation appears to be offered up in 'weeks of rent' than fixed sums - perhaps this simply sounds better but its not pretty when that weekly rental sum isn't a cheap rental.

Good luck - as the previous poster stated if they turn up you can expect you'll have to offer them something as compensation even if you have done nothing wrong.

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"

[lois]

hi Viking, I just lodged an appeal, the judge said that the tenant didn't have a case to answer but awarded her a weeks rent for stress.. so we will see how we go. in the rehearing notice I asked what part of the tenancy act awards payments for stress please. bob each way judge, who was very intimidating made a big deal if I wanted to be called Mrs or Ms and introduced her self as Ms, one stage I let out a gasp and she berated me for a good 5 minutes about not speaking out of turn. My point being a simple sentence would have sufficed. she seamed to concentrate on the emotional events rather than the law. I have also put in a complaint to the principle tenancy adjudicator see how we go.

[ReelBuzz]

Hi can anyone tell me if there are any 'rules' regarding how long an adjudicator may take to get a decision out after a hearing. I had two cases to attend in the TT. One decision was out in 3 weeks, the other, we are still waiting at 6 weeks. Ths is a ridiculous time span, what can I do about it other than call the court.

[eri]

not far different from a gang renting a house to make P

or letting pets destroy the carpet

but completely different result

The rental company, understood to be Ace Rental Cars, cancelled the men's contract and threatened to take civil action due to the damage done, he said.

The men, from the North Island, then approached the rental company and bought the car outright to stop any further action, Hargreaves said.

http://www.stuff.co.nz/motoring/news/84329650/men-modify-rental-car-with-homemade-snorkel-take-offroad-near-queenstown