RETALIATORY NOTICE

Holding your landlord to account without the risk of losing your home

by Sarina Gibbon, General Manager of the Auckland Property Investors’ Association 

Given the inherent power differential in a tenancy relationship, it is no wonder some tenants choose to sit on their rights for fear of having the tenancy terminated altogether. The recent removal (from February 2021) of the landlord’s ability to terminate a tenancy with a no-fault 90-day notice certainly provides some peace of mind but it really is the retaliatory notice provisions under s54 of the Residential Tenancies Act that gives tenants the safety net necessary to hold landlords to account. 

What is a retaliatory notice 

Generally understood to be a termination notice issued in retaliation of a tenant asserting a right against her landlord, a retaliatory notice (and the statutory protection for tenants) actually takes on a very specific meaning consisting of several key components:

1. It is a termination notice (for example, a 14-day work order cannot be considered retaliatory)

2. whereby the landlord is at least partly motivated 

3. by the tenant legitimately (i.e. not in a vexatious or frivolous manner) exercising her right vis-à-vis the tenancy.

    

It is an unlawful act the consequence of which would lead to the setting aside of the notice (i.e. the tenancy continues) and may result in an exemplary damage of up to $6,500 being awarded to the aggrieved tenant. 

Criteria of a successful s54 application

On the face of it, a retaliatory notice seems simple enough. But if the numbers from 2020 are anything to go by, tenants’ batting average hasn’t been super great. Approximately 54% of reported Tribunal orders from 2020 relating to an s54 application were unsuccessful. 

Broadly speaking, successful claims meet six criteria: 

1. The application is

    made by a tenant 

   (s54 specifically protects tenants,

    not landlords);

    

2. The application is made

    within 28 days 

   of the termination notice being received (i.e. deemed served);

    

3. The termination notice in question has to be served correctly in the first place (i.e. comply with either s51 for periodic tenancies or s66U for boarding house tenancies);

    

4. That prior to the termination notice being issued, the tenant

    had exercised or suggested that she would exercise a right, power, authority or remedy she has against the landlord that is to do with the tenancy;

    

5. That the tenant, in exercising this right, had not done so vexatiously or frivolously;

    

6. That the tenant’s action described here had, at least in part, given the landlord the impetus to terminate the tenancy.

    

Failure to meet the 28-day application window happened with surprising regularity in 2020. The good news is that it is an easy fix. Renting is a commercial undertaking for everyone involved - landlords and tenants. Get into the habit of approaching your tenancy with a business mindset. Have your paperwork in order and always act with expedience.  

Other tips:

1. Attach the original termination notice with your application so the Tribunal can assess its validity;

    

2. As much as you can, get into the habit of communicating with your landlord in writing creating a paper trail you can later rely on if necessary;

    

3. Hold mock hearings to practise your presentation. The goal is to prove to the adjudicator that it is more likely than not you had complained legitimately and your complaint had triggered the landlord to terminate;

    

4. Do not automatically assume that any notice to terminate issued immediately following an acrimonious exchange is straight away retaliatory, the Tribunal tends to consider the relationship as a whole more so than honing in on a specific interaction at a moment in time;

    

5. Act reasonably and professionally throughout the tenancy. Base your complaints on facts. Do not nitpick and always work with your landlord to resolve issues in good faith. If nothing else, you are making sure that vexatiousness cannot be subsequently relied on to justify a retaliatory notice;

    

6. Empower yourself with knowledge and put that knowledge to good use.

    

   If you don’t know your rights, you won’t know that you are being wronged in the first place.

    

   The law has come a long way in recent years to empower tenants with more protection and certainty. The full effects of s54 can only be felt if tenants are bold and knowledgeable enough to exercise their rights appropriately sending landlords the clear message that the days of a presumed power imbalance is well and truly numbered.

    

The Auckland Property Investors’ Association Incorporated is a non-profit group that provides education and networking opportunities for landlords. Tenancy questions can be submitted to admin@apia.org.nz. The information in this article is general in nature and not intended as legal, tax or financial advice. 

Sarina GibbonGeneral ManagerAuckland Property Investors' Association