Family win damages against landlord for 'retaliatory' eviction

Landlords do not need to give reasons for 90-day eviction notices, which critics argue is unjust and open to abuse. Photo / 123rf

An Auckland couple has won financial damages against their landlord after the Tenancy Tribunal ruled their 90-day eviction notice was in part an unlawful "retaliatory" action.

Rhys Duncan and his partner went to great lengths to prove the sudden notice to end their seven-year Massey lease was manifestly unfair.

This included orchestrating a sting operation in which their property manager Nikki Dixon was secretly recorded giving the professional couple a bad reference to a relative posing as a prospective landlord.

In the recording, Dixon said the couple had been a "constant struggle".

"I mean they are not terrible but ... I probably would avoid them if possible.

"I just made the decision it would be best for us to move them on and find new tenants."

The recording was used as evidence against property management company NZ Invest during a tribunal hearing in December 2016 after the couple challenged the decision to evict their family.

Landlords do not need to give reasons for 90-day eviction notices, which critics argue is unjust and open to abuse.

Tenants Protection Association (Auckland) coordinator Angela Maynard said the case highlighted the vulnerability of Kiwi renters.

Tenants were often treated like second-class citizens, with 90-day notices "grossly weighted in favour of landlords".

"When you're under constant threat of upheaval it discriminates against a large chunk of the population.

"It's grossly unfair and it stops security of tenure."

In the couple's case, the tribunal ruled Dixon had unlawfully issued the eviction notice after the couple challenged claims they were behind in rent.

Duncan said that after he demanded evidence in a terse phone conversation with Dixon, the company arranged a property inspection then issued the eviction notice within days.

The tribunal ruled the notice was in part retaliatory and unlawful under the Residential Tenancies Act.

Duncan had been entitled to seek clarification regarding his rent payments, the adjudicator said.

"I have come to the conclusion that the notice was at least partially motivated by the tenant's attempted exercise of his rights under the RTA.

"I have no doubt that if Mr Duncan had not pursued an explanation of the tenant ledger with the zeal that he did, he would not have been served a 90 day notice by the landlord."

Though the notice was ruled unenforceable, it was largely "academic" as the couple moved out of the property in late 2016.

The eviction had forced the family from their home of more than seven years, where they had felt settled and happy.

"It was an unwanted upheaval in their lives."

The couple were awarded $950 in exemplary damages plus a further $200 for the firm's failure to keep business records.

Duncan told the Herald on Sunday the damages payout was "paltry" but the decision was a moral victory and "matter of pride".

"I am 58 years old and have never come across a situation in my business career that compares - where you are made to feel second class. If you rent a car you are treated better than if you rent a property."

He said the worst part was not knowing why his family had been issued the eviction notice after a stable, long-term tenancy.

"It was virtually incontestable. You feel a bit aggrieved. It was expedient for them to get rid of us and get someone else in."

Dixon declined to comment, referring questions to NZ Invest.

General manager Kylie Turgis said the company disagreed with the decision but would abide by the ruling.

More than 76,000 applications were made to the Tenancy Tribunal in the last two years, nearly 68,000 of them by landlords.

This included 645 retaliatory notice applications by tenants.

The Government is currently reviewing tenancy laws, including the 90-day rule, with legislative changes expected next year.