The Tenancy Tribunal has ruled a tenant was issued an unlawful termination notice. Photo / 123rf
The Tenancy Tribunal has ruled a tenant was issued an unlawful termination notice. Photo / 123rf
A landlord has been taken to court by an industry watchdog for terminating a tenancy within half an hour of receiving the complaint about the state of the house.
The alert to the Ministry of Business and Innovation (MBIE) and the subsequent ruling from the Tenancy Tribunalsends a strong warning to landlords that they can’t evict a tenant who has complained about their rental property.
A complaint was received from a tenant by the Tenancy Compliance and Investigations team (TCIT) at MBIE in April 2022 regarding water ingress at a property in Johnsonville, Wellington owned by Wei Zhang.
A site visit in June revealed water ingress, a faulty smoke alarm, and an electrical fault including the unsafe use of extension cords plugged into the bathroom to run power to the lounge.
The MBIE investigator requested information from the landlord and a weather tightness inspector could not find the source of the leak.
In November 2023 the tenant’s son reported ongoing electrical issues to MBIE. The investigator phoned the landlord about the electrical issues after which the written improvement notice was given at 12.17 pm. Zhang responded by advising MBIE during the call that she would terminate the tenancy.
Fifteen minutes later, the tenant received an email from Zhang terminating the tenancy.
“I haven’t heard you give me any information about the problem, but you keep telling me that the tenancy has various problems with my house, so I want to redecorate the house and decide to live in it by myself. Please move out of my house as soon as possible… within three months at the latest,” Zhang said in the email.
MBIE applied to the Tenancy Tribunal to set the termination notice aside on the grounds it was in retaliation for making complaints.
Although Zhang continued to maintain she wanted to move back into the property to conduct renovations, tenancy adjudicator Rex Woodhouse said there was no evidence presented to support the claim.
“I am entirely satisfied that when the landlord issued the termination notice to the tenant, she did so at least partly motivated by the tenant’s complaint via MBIE. That makes the termination notice a retaliatory termination notice.
“It is completely lawful for the tenant or MBIE to raise that with the landlord, and if the landlord terminated the tenancy in response, even in part, then the landlord is acting in a retaliatory way.
“The effect of the unlawful act is that the tenant was advised his tenancy would end, which I could accept would have caused significant stress for him and his family. There are strong interests for tenants and the public generally, that when termination notices are given, they are only given lawfully. Ending a person’s tenancy is a very significant step to take,” Woodhouse said.
The tenant was awarded $2166 in exemplary damages and the termination notice was cancelled.
MBIE took the landlord to court for issuing a termination notice in retaliation for complaints. Photo / 123RF
General manager for Auckland Property Investors, Sarina Gibbon told NZME retaliatory evictions occur far too often where tenants feel locked into tenancies once they make a complaint.
“A lot of the time we hear tenants say we don’t dare to complain to landlords because the next day we will be homeless. If you assert a right against your landlord requiring you to bring the property up to standard, straight away you lock in your tenancy because if the landlord turns around and gives you a termination, you can take them to the tribunal and make a claim that they are partially motivated by a desire to stop you asserting a right against them. That fits a retaliatory notice,” Gibbon said.
Gibbon said it was a significant decision given the complaint was brought by the chief executive for a one-off offence.
“This was a run-of-a-mill retaliatory notice but the fact the chief executive of MBIE has taken this action is a signal to the industry the TCIT is looking at breaches covered by the Residential Tenancy Act, not just healthy homes or bond lodgements.
“You don’t have to be somebody who’s repeatedly fronting the law to have action taken against you, you could make one mistake and end up in the Tenancy Tribunal responding to a claim brought to you by the chief executive which is a very different ball game compared to a tenant bringing about a claim,” Gibbon said.
TCIT national manager Brett Wilson said MBIE has taken three landlords to court for retaliatory notices since 2017 and they will take steps to ensure tenants are protected when they complain.
“Landlords should be aware that they cannot terminate a tenancy because the tenant has complained or TCIT decided to take enforcement action against the landlord,” Wilson said.
A spokesperson for the Tenants Protection Association said the body sees a lot of this kind of retaliatory activity and encouraged tenants to try for exemplary damages at the tribunal when appropriate.
Shannon Pitman is a Whangārei-based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.
