Rotten floorboards, leaking showers, water running down internal walls: where do tenants turn when landlords fail them? Not the Tenancy Tribunal - in fact, often not anywhere. Kate Newton asks why.
Room 10.1 at Auckland District Court, where the Tenancy Tribunal is in session, has a nice view. Winter sun streams through the windows on one side of the room. Beyond the city high-rises a few yachts tack back and forth on the harbour. But Murray is staring down at the table, because she’s about to be evicted.
The adjudicator is flicking through the rent history. She’d had a “fantastic record” of paying the $380 in weekly rent until October last year, he says - what happened?
Her son used to live with her and pay some of the rent, she explains. Then he moved to Australia and she’s been trying to find a housemate since. The empty room is mouldy, though. The shower is leaking into an adjoining wall. A neighbour has offered to move in - because no one else will - to help shoulder the cost, but she’ll need to pay the arrears back over time, she says.
The landlords are $16,000 down, though, and they’re out of empathy. “I don’t want this to go any longer,” one says. “We would like to terminate and cut our losses.”
Tribunal cases usually centre on unpaid rent
Of the roughly 19,000 cases that end up in the Tenancy Tribunal each year, about two-thirds of them are over unpaid rent. One tribunal adjudicator said he had once heard 16 rent arrears cases in a day, each of them allotted 20 minutes. Evicted. Evicted. Evicted.
Thousands of other claims each year are from landlords seeking reimbursement for cleaning costs or repairs for damage. In fact, of all the cases that go to the tribunal, about 90 percent of them are taken by landlords. Each year, one in nine of New Zealand’s 131,000 private landlords goes to the tribunal.
There is no corresponding avalanche of complaints from renters to the Tenancy Tribunal - even though it’s their money funding it (through interest on bonds lodged with Tenancy Services) and was set up, in 1986, to help protect them, as well as landlords.
There’s no question that renters are having problems. A government-commissioned report released in February said they “consistently report that their home is in worse condition than owner-occupiers”, and independent assessors have found 32 percent of rental houses are poorly maintained.
Yet of the estimated 590,000 households who rent, just one in 250 a year take a case to the tribunal, and then nearly always because the rental has become truly dire. A Wellington woman living with boarded-up windows through the winter; an elderly woman, suffering pneumonia, who pressed for her leaking roof to be fixed and found herself threatened with eviction in retaliation.
So, why are tenants so reluctant to go to the tribunal?
Asked to pay for rental roof collapse
Melissa* only went because she had nothing left to lose. She walked into a tribunal hearing in 2015, armed with A2-size photos of the mould and rot revealed when a ceiling collapsed in the home she, her partner and their two preschool children rented in Petone, Lower Hutt. The photos revealed hand-sized patches of puffy brown mould mushroom on one ceiling beam and black rot eating away at others.
She and her partner were suspicious of the bowed ceiling in one bedroom when they first moved in five years prior. “We had three years of emails [to the landlord] saying, hey, you need to look at this, hey, it’s getting worse.”
It eventually caved in during a huge rain storm, just a few months before they were due to move out. With a paddling pool collecting water in the room, she fired off a “pretty livid” email to the landlord, asking to end the lease early.
“The landlord just flipped his lid. [He] said, actually, no, we’re going to seek compensation from you … cos it’s your fault, it must’ve been you not taking care of the house.”
Leaning heavily on Tenancy Services for help, Melissa put herself through a crash course in tenancy law. “It’s a huge process - you have to learn a whole lot of ‘legalese’. I’ve read through the Act in full twice now, it’s crazy, but a lot of people wouldn’t be able to wade through it - you need that hand-holding sometimes.”
The tribunal ruled in their favour, ordering compensation of just under $1000. “Despite how stressful it was, it was actually a really positive experience,” she says. “I felt heard, I felt legitimised.”
But Melissa understands why few do what she did. “You need that reference to get into your next property. It doesn’t matter how badly things have gone and what the landlord’s done and whether it was legal or not - you do need that reference. It’s terrifying because landlords and letting agents, they’re the ones that hold the power - they’re the ones that decide if you’ve got a roof over your head.”
Tenants put up with it out of fear
Anglican Advocacy director Jolyon White has given advice to Christchurch tenants in egregious living situations: “Quite serious things, like water running down the inside wall of a house. In [one] case it was rotten floorboards, you could see through to under the house… [But] their fear is that if they go to the Tenancy Tribunal, whether they win or not, they are going to be moved on.”
Landlords only have to give 90 days’ notice to end a periodic lease and they don’t need to give a reason. If they or their family want to move in, they only need to give 42 days.
The law bans landlords from giving tenants notice in retaliation for taking a case to the tribunal, but Mr White says in practice it’s hard to prove a landlord has done this. “All [the landlord] needs to do is wait … and then move them on anyway.”
Mr White says the fear of being kicked out, combined with a lack of affordable alternative accommodation, means renters just “put up with it”.
One tenant advocate told researchers, in an article published last year in the New Zealand Journal of Social Sciences Online, they recommended going to the tribunal “all the time ... but we probably get only about a quarter that go to the tribunal out of the calls we get.”
Kicked out with her son in winter
Holly Hemlock is the only one of her friends who has gone to the tribunal. “Everyone I’ve spoken to, heaps of people have pulled out [of the process]. I went to Citizens Advice Bureau - they were wonderful ... but they were saying to me they didn’t think I had much chance.”
But Hemlock - black boots, black clothes, black nail polish, and electric purple hair - was not going to be intimidated. Her landlord, a developer, had kicked her and her 14-year-old son Paul out of their Berhampore, Wellington house with 42 days’ notice, saying his sister was moving in.
Hemlock smelled a rat. The landlord had talked about tearing the house down to build apartments, and had already bought the property next door. She walked by a few times, asked the neighbours. “[They said], ‘Nup, no one, no lights, nothing moved in - no one’s been there except developers.’”
She hit up the landlord and he offered her money to keep a claim out of the tribunal. “I said I want justice, I don’t want money, I don’t want this to happen to people like me again.”
Once she lodged the claim, things got nastier. “They were getting almost threatening in their emails, just subtly… so that was stressful but I had to go ahead with it, because they chucked out a solo mum and her kid with 42 days’ notice in winter-time.”
Kate Day says it’s rare for someone to take Hemlock’s damn-the-torpedoes approach.
Together with offsider Robert Whitaker, Day runs Wellington Renters United - a grassroots tenants’ association founded in response to the capital’s skyrocketing shortage of rental properties, which came with rental prices to match.
The pair have dealt with renters not only scared of damaging the relationship with their landlord, but jeopardising future tenancies. “We had a campaign going a while back about a website called TINZ - Tenant Information New Zealand,” she says. “It’s a database that stores information about tenants. So if tenants are known to have taken a case, that could potentially lead to discrimination against them getting a place in future.”
The TINZ website, which is owned by credit agency Illion, promises “$$ for your tenant information - Ratings, Tribunal orders, 14 day notices online” and pays $4 for every ‘tenant lodgement’ property managers provide.
Renters United has also heard of application forms for rental houses that ask applicants whether they’ve ever taken a case to the Tenancy Tribunal, Day says. “The fear of repercussion is genuine.”
For two summers, Emma* worked for a “very big, very well-known” property management company, processing applications from prospective tenants. As well as the usual credit and reference checks, she would also, as a matter of course, search their names in the decisions database on the Tenancy Tribunal’s website. If she found an order, she was instructed to print it out, attach it to the file, and bring it to the attention of the property manager.
Early on, she asked if she needed to do that if it was the tenant who had brought the landlord to the tribunal. “I thought if there’s been a crappy landlord and the tenant’s taken them to the tribunal, that shouldn’t be relevant. I said that to my bosses and they universally came back and said, ‘We still want to know about it because it will tell us if they’re going to be a difficult tenant.’”
A renter herself, the policy has stuck with her. “I thought, wow, if I’m ever dealing with a shitty landlord myself now, the last thing I would want to do now is take them to the tribunal, because even if I’m 100 percent in the right, and even if I win, that will still be considered a bad thing against my name and it will probably inhibit me from getting a flat.”
Intimidating setting and swift decisions
Like other tribunals in New Zealand, the Tenancy Tribunal sits in district courthouses. People wait for their hearings on fixed plastic seats in corridors, staring hard at flecked carpet and trying not to make eye contact with anyone else. Inside, the hearing rooms are set up exactly like a court: adjudicator at the front, often on a dais, and tenant and landlord on opposing sides of the room.
Jolyon White, who has accompanied several tenants in his work at Anglican Advocacy, says the setting can be intimidating. “If you have a really flash building with nice wood walls and lots of people walking round in suits, there’ll be some people that feel comfortable there and some people that don’t.”
It’s possible for tenants to take an advocate, but it’s not encouraged, Kate Day says. “On the flipside, landlords who employ a property manager, that property manager can represent them in the tribunal without the landlord even having to be there. And property managers are professionals who go to the tribunal all the time. So already, to begin with, you have a power imbalance.”
Adjudicators are mostly senior lawyers, many of them with experience sitting on other tribunals. Their styles vary hugely. Some take an informal approach, welcoming people, explaining how the hearings work, and trying to get tenants and landlords to agree on as much as possible themselves.
Others treat the hearings more like traditional court cases, with no prelude before launching straight into the claims. With little time to hear each case, some are visibly irritated if a landlord or tenant doesn’t have their paperwork in order or their calculations correct.
With thousands of cases to be heard each year, the justice meted out through the tribunal is swift: It’s unusual to wait more than a few weeks for a hearing.
Tauranga lawyer Michael Sharp, who provides pro bono advice to tenants through a new housing service at Baywide Community Law Centre, says that can have its downsides. “[Tenants] tend to get quite short notice of hearings and not a lot of information … then they turn up and the landlord’s got other documents.” They have a right to ask for an adjournment, but often they don’t know that, he says. “They often get steamrolled by the whole process.”
In the south Wellington suburb of Kingston, at the top of a slope that sheers away down through gorse and pine into Happy Valley, is the house Teuila* and her mother rented for three years.
A sunroom faces due west across the valley but the house backs on to a clay bank, and for much of the time they lived there, they fought an ongoing battle with mould. It started in one bedroom, gradually spreading into another, creeping across the walls and ceiling. [We were] ventilating the area, and we would always regularly wash it,” Teuila says.
When they moved out in 2016 their landlord took them to the Tenancy Tribunal, claiming for some damage to the house - and for the mould.
Teuila, who was a tertiary student at the time, had spent hours preparing ahead of the tribunal hearing, combing through what information she could find online. But on the day of the hearing, she was “blindsided” with a laundry list of additional damage, much of which they still dispute they caused, Teuila says.
And because her mother was the only one on the lease, the adjudicator ruled Teuila could not present her carefully-researched defence. Instead her mother, nervous and unprepared, had to present their case. “It just felt like everything went to shit from the beginning because of that.”
The tribunal decided the mould was “a cleaning issue”.
“Whilst the tenant pointed to bush on one side of the property, a lack of sun to some rooms, and a lack of full insulation, the landlord established from photographs taken at the property at the start that there was no mould at that time,” the tribunal found.
Teuila and her mother lost their bond and had to pay another $1020 to cover the balance.
They were “really naive”, Teuila says. Acting in good faith, most of their dealings with the landlord had been over the phone, with no record of what was discussed or promised - and therefore little hard evidence to present to the adjudicator.
“I helped [my mother] get into a new house and made sure she took photos at the beginning. And this time there’s no phone calls - everything is by text or by email so there’s a paper trail.”
Some of the people she has helped did not even know the tribunal existed until she told them about it. “They don’t necessarily know they can go to the tribunal and they don’t know how.”
There’s a lack of dedicated advocates for tenants, both to educate people about their rights, and support them when things go wrong, she says.
Melissa, the tenant whose ceiling collapsed, says the government-run Tenancy Services is “fantastic”, but both it and advocacy groups like Renters United need to raise their profile.
“Especially in areas where people are most vulnerable to being bullied or shafted ... I just don’t think people know those services are there.”
A voice for renters
Renters United and Anglican Advocacy are among groups lobbying for the government to use the millions of dollars it pockets each year in unclaimed bonds to fund a proper advocacy service.
“That is renters’ money which is funding a lot of the Tenancy Services staff,” Day says. “We would like to see that used for advocacy for renters, which would include some education about people’s rights, but particularly that support for those who do want to stand up for themselves and need a bit of support to do it.”
Housing Minister Phil Twyford says it’s an idea he’s heard before. “It’s not our policy to do that currently, but it’s clearly an idea that has some merit and I’m sure we’d be willing to look at it.”
Michael Sharp, the Tauranga lawyer, isn’t waiting for the government to act, though. Together with the Law Society and the Bar Association, he’s leading a working group to set up a nationwide pro bono legal service that would include a housing and tenancy law division. “Not a lot of lawyers give advice to people on tenancy law because generally tenants haven’t got a lot of money," he says. "This is really just to even up the battlefield.”
There’s a long list of other things Kate Day thinks would encourage tenants to bring cases. For example, Renters United is keen to see mediation, which is only offered in just over half of cases, used more often. The tribunal itself should adopt a more investigative, or inquisitorial model. And renters should be allowed to have an advocate speak on their behalf.
But the biggest barrier to tenants being able to assert their rights is a lack of security of tenure, created by no-cause terminations, she says. “If renters knew they were secure in their homes, that they were really able to push for their rights … then I think far more people would be willing to stand up and argue their case.”
Twyford has promised a full review of tenancy laws, which he hopes to start consulting on with Cabinet’s approval by August, with legislation in Parliament by Christmas or early in 2019.
He agrees landlords’ right to end a tenancy for no reason is a “big disincentive” to tenants to resolve issues directly with a landlord or make a tribunal claim. But landlords tell him they rely on the notices in order to kick out truly bad tenants. “If we are going to get rid of 90-day notices then we’ve got to provide a way that landlords are able to deal with rogue tenants in a timely way.”
Otago University housing researcher Sarah Bierre says a rise in tenant-driven cases in the tribunal would not necessarily spell success. “It would be great if we had more good quality, affordable housing for people where they didn’t need to complain about it.”
While renters are waiting for that to happen, though, they need a tribunal system they can depend on, Kate Day says. “It’s the one way we have to enforce tenancy law … and yet so few tenants feel confident to use that system.”
*Names have been changed
This article was originally published by RNZ.