Rent rise not retaliatory, tribunal says it cannot reformulate the law

Sally Lindsay

The Tenancy Tribunal has thrown out a novel argument raised by a tenant in a bid to avoid a $100-a-week rent hike.

Parker Van Lawrence, representing tenant Tracy Constable, maintained the tribunal should find the notice raising the weekly rent from $515 to $615 invalid because it was retaliatory or a constructive termination notice.

Constable has been living in the average-condition, three-bedroom, two-bathroom premises in Massey since July 2014.

Previous rent increases had been modest; $10 in 2017 and $15 in 2020, the tribunal was told. The rent was $490 a week at the beginning of the tenancy and the new rent of $615 a week represented a 20% increase over seven and-a-half years, equating to about 3% per year.

Van Lawrence told the tribunal it could strike down the rent increase if it was motivated by the tenant exercising her lawful rights.

He urged the tribunal to interpret s 54 of the Residential Tenancies Act (RTA) purposively, using its jurisdiction under s 77(2)(j)), and treat “retaliatory” rent increases as analogous to retaliatory termination notices under s 54.

Under s 54, a tenant can apply to the tribunal for a termination notice to be declared retaliatory. The tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.

Section 77(2)(j) gives the tribunal jurisdiction to order that a provision of the RTA “shall not apply to, or in relation to, any tenancy agreement or any residential premises or shall apply in such modified form as the tribunal may specify in the order”.

But tribunal adjudicator R Kee said the submission went beyond what he could do when interpreting the legislation.

“The tribunal is a creature of statute. It can only apply the RTA. It cannot reformulate the Act in fundamental ways that clearly go beyond Parliament’s intent.” What Van Lawrence was proposing went beyond interpreting the RTA to reformulating it, he said.

Kee did not find it proven that the landlord’s rent increase notice was “retaliatory”.

“Van Lawrence placed a lot of emphasis on an email in which the property manager had commented to her manager: ‘I am looking at increasing her rent in line with current market for three bed, two bath (which will see it increase by $100 per week) with the hearing being next week. Is there an issue doing this …[a]s I am not wanting to be seen as retaliatory should [w]e lose the case next week and then issue the notice’.”

Van Lawrence portrayed the email as betraying guilty knowledge that the landlord’s true motivation for the rent increase was retaliatory.

However, Kee said he did not consider the email betrayed guilty knowledge. Rather, it showed an awareness of how the rent increase might be seen as being retaliatory.

“If such an email emerged in a s 54 case, it would indicate a competent professional awareness of the law. It would probably not (depending on the context and wording) of itself have proved a prohibited motive.”

Nor, he said, had the tenant shown the rent increase amounted to effective unlawful termination.

“That might have been the case if the rent increase

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