What is a Retaliatory Notice?
A retaliatory notice is a notice given by a landlord to a tenant, intending to end the tenancy in response to the tenant exercising their legal rights.
A retaliatory notice typically transpires when a tenant makes a complaint about the property, requests repairs, or reports the landlord for not complying with their legal obligations, and a landlord opts to terminate the tenancy rather than address the issue at hand. This might appear as a straightforward solution; however, the issuance of a notice under such circumstances is deemed retaliatory and is illegal under New Zealand law. It opens the door to substantial legal complications and has the potential to tarnish your reputation as a landlord.
If the retaliatory notice to terminate was given (in reverse) by tenants for something a landlord has done, then unfortunately, the RTA does not cover this, and there is no protection.
Common Mistakes and How to Avoid Them
1. Reacting on Impulse:
Example: A tenant asks for a roof to be fixed or complains about the property, and the landlord immediately issues a notice to end the tenancy out of frustration.
The tenants have a right to live in a safe and well-maintained property. It is best to address their concerns professionally and ensure that any necessary repairs are made promptly.
2. Lack of Knowledge on Tenant Rights
Example: Not being fully aware of the tenants' rights and protections provided by the RTA, leading to the issuance of a notice that could be deemed retaliatory.
The tenants can apply to the Tenancy Tribunal within 28 working days of receiving a termination notice if they believe the landlord was wholly or partly motivated to end the tenancy by tenants standing up for their rights under the RTA. The Tribunal will be looking at timing and sequence of events around the notice. If it finds that the notice was retaliatory, it can have the notice set aside and award exemplary damages of up to $6,500.
Even if you're a compliant landlord with the best intentions, you should educate yourself on the Residential Tenancies Act and the rights it affords to tenants. Remember that the tenant needs only to prove that you were partially (not wholly) motivated by the tenant's actions to serve notice to terminate to be found violating the law.
3. Failing to Keep Proper Records
Example: In a dispute, landlords must provide evidence that the notice was not retaliatory. Failure to keep proper records of communication and property maintenance can work against the landlord.
The strongest evidence you can produce is proving that you had pre-existing plans to terminate the tenancy (e.g. notes from the meeting with your adviser with instructions to terminate, emails with contractors discussing major renovation plans, communication discussing plans for your own relocation)
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Retaliatory notices are a serious violation of tenant rights in New Zealand, and landlords must be vigilant to avoid engaging in such practices. Investing time in educating oneself and maintaining transparent communication can go a long way in preventing legal issues and ensuring a harmonious relationship with your tenants.
The information contained in this article is exclusively for promotional purposes. It does not in any way constitute legal advice and should not be relied upon as the basis for any legal action or contractual dealings. The information is not, and does not attempt to be, a comprehensive account of the relevant law in New Zealand. If you require legal advice you should seek independent legal counsel. myRent.co.nz does not accept any liability that may arise from the use of this information.
