What to do when you have problems with Renters or Landlords?

 

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If you have a dispute with your landlord, you can get information and a free mediation service from Tenancy Services, which is part of the Ministry of Business, Innovation and Employment (MBIE).

Early on, you should try to solve the problem by talking it through with your landlord directly. But before you do that, contact Tenancy Services to find out exactly what your legal rights and obligations are. You can phone their free advice line – 0800 TENANCY (0800 83 62 62).

If talking to your landlord doesn’t solve the problem, you can take it to mediation through Tenancy Services. There’ll be a meeting where a mediator will help you and your landlord try to agree on a solution.

If mediation doesn’t work, Tenancy Services can give notice to your landlord to solve the problem, according to the rules under your tenancy agreement or the Act. If Tenancy Services can’t help, you can take the dispute to the Tenancy Tribunal – basically a specialist tenancy court – for it to decide the outcome.

The Tenancy Tribunal: A court to decide tenancy disputes

What is the Tenancy Tribunal and what can it do?

Residential Tenancies Act 1986, ss 77, 102

The Tenancy Tribunal is a type of court that specialises in disputes between tenants and landlords. It’s faster than going to a normal court. It’s also a lot cheaper – you’ll pay an application fee of about $20 and you won’t usually have a lawyer at the tribunal hearing.

The Tenancy Tribunal has wide powers to resolve various types of tenancy disputes. This can include:

The Tenancy Tribunal can order work to be done or money to be paid up to a value of $100,000. Claims for more than this can be dealt with through the District Court.

How do I take a dispute to the Tenancy Tribunal?

You can apply online, or you can apply using a paper copy of the form, which you can get from a Tenancy Services office. The processes are explained at: www.tenancy.govt.nz/disputes/tribunal/making-an-application

It costs $20.44 to apply to the Tenancy Tribunal. If the dispute has been to mediation first, one of you will have already paid this fee.

What happens at the Tenancy Tribunal hearing?

Residential Tenancies Act 1986, ss 93, 95, 95A, 96, 97, 98Residential Tenancies Act 1986, ss 80, 104

Tenancy Tribunal hearings are less formal than the courts. The person who hears the dispute and makes the decision for the Tribunal is called the “adjudicator”. You and the landlord both get a chance to tell them your side of the story and to answer any questions the adjudicator has. You can also bring witnesses to give evidence. It’s usually more effective to have witnesses give their evidence in person, rather than bringing letters or statements.

The two sides usually don’t have a lawyer or representative and instead represent themselves; lawyers or representatives are only allowed in limited situations. However, you can bring a support person with you.

You should bring all documents or other material that supports your claim (your “evidence”) – for example, your tenancy agreement, bank statements, rent books, and any notices that either side have given the other (with two extra copies of everything for the adjudicator and the other party).

The hearing is usually open to the public. If you don’t go to the hearing, your case could be dismissed. If you’re successful, you can get your name and identifying details removed with a suppression order, unless the Tenancy Tribunal decides otherwise.

The Tenancy Tribunal adjudicator will make a decision about the dispute and put this in writing (this is called an “order”). The decision is legally binding: you and the landlord have to follow it.

If you don’t go to the hearing, your case could be dismissed.

What if I’m not happy with the Tenancy Tribunal’s decision?

Residential Tenancies Act 1986, s 117Cases: (1985) 5 NZAR 477 (HC) – [2017] NZDC 2259

You can challenge the Tenancy Tribunal decision by appealing it to the District Court. You can challenge it on the grounds that the Tribunal got the facts wrong, or got the law wrong, or both.

But to win your appeal you’ll have to persuade the District Court judge that there’s a clear and convincing reason to overturn the Tenancy Tribunal’s decision. The appeal judge will take into account that the Tribunal is an experienced specialist body that’s used to dealing with tenancy disputes, and so will tend to be cautious about overturning its decisions.

The rule that the District Court will be cautious about overturning a Tenancy Tribunal decision also applies when your landlord doesn’t like a decision that was in your favour, as shown in the following example.

Example: When can the District Court overturn
a Tenancy Tribunal decision?

Case: [2017] NZDC 2259

The landlord had agreed with the tenants that they could get out of their fixed-term tenancy if they found “suitable” tenants to replace them. The original tenants found replacements who had a good credit history, could afford the rent, and had good references. However, the landlord didn’t accept those tenants, because they didn’t have a previous tenancy history and they had a child. The landlord later found other replacements, and wanted the original tenants to keep paying rent up to when this new tenancy started.

The dispute went to the Tenancy Tribunal. The Tribunal found that the landlord had been unreasonable here, that most people would have seen “suitability” as depending on credit history and references. The Tribunal decided the tenants didn’t have to pay the extra rent the landlord was claiming.

The landlord then appealed to the District Court. In line with the rules for these appeals, the District Court judge didn’t hear the whole case all over again and consider what the correct decision should have been – instead, the appeal judge started with the Tenancy Tribunal’s decision and simply considered whether this decision had been “open” to the Tribunal given the facts and the law. The appeal judge also took into account that the tenancy laws say the Tribunal should make decisions based on the general legal principles that apply to the case, not on strict technicalities.

In this particular case, the appeal judge decided that the decision in favour of the tenants had been one that was open to the Tenancy Tribunal and so the judge refused the landlord’s appeal.

By the way – it’s illegal for landlords to discriminate against potential tenants on the grounds that they’ve got a child: for more information, see the chapter “Discrimination”.

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