1 Comment 1 Comment
The comment arose when one of Lowe & Co Property Management’s tenants took it to court over an unreasonable delay in the bond being returned. And further requested compensation for the landlord’s failure to notify the Bond Centre of a change of landlord within the required timeframe of 10 working days.
In October last year the Karori property was sold during the tenant’s occupancy.
The new landlord was required to notify the Bond Centre within 10 working days after the sale of the change and their name and contact details.
If not done, it is a breach of section 21A of the Residential Tenancies Act (RTA) and exemplary damages of up to $750 can be awarded.
Lowe & Co, as agents for the new landlords Anna Pu Li and Fei Yao, did not advise the Bond Centre of the change until mid-January this year. Consequently the tenant’s bond repayment was delayed.
At a Tenancy Tribunal hearing in April compensation of $250 was awarded and the $1,900 bond returned to the tenant, whose name is suppressed.
However, Lowe & Co applied for a rehearing claiming it had new evidence.
Change sent ‘earlier’
At the hearing for a rehearing, Ms Deakin from Lowe & Co said the change of landlord form was sent to the Bond Centre in November 2020.
She produced an email dated November 17, sent by another property manager from Lowe & Co to the Bond Centre, attaching a change of landlord/agent form signed by the previous landlord on October 28.
The change form was signed by Deakin on a date the tribunal said was either not legible, or may not have been completed.
The form shows the change took effect from October 23, 2020.
Deakin told the tribunal the evidence showed the landlord took steps to notify the Bond Centre of the change much sooner than she had indicated at the original hearing and had that evidence been submitted at the hearing, it may have affected the outcome.
She also produced a letter from the Bond Centre on December 23 saying it did not have any record of Lowe and Co as the landlord/agent and could not action the refund of bond request until a change of landlord/agent form had been completed.
Deakin claims that for some reason the Bond Centre had failed to action the change of landlord/agent form already sent by email on November 17 which was “not the fault of the landlord”.
Outside timeframe
The adjudicator said even if the form had been sent on November 17, it was still outside the required timeframe of 10 working days.
Deakin then produced a statement signed by the previous property manager dealing with the matter.
This alleged that when she attempted to arrange for the previous landlord to sign the change of landlord form, he would not respond and when he did finally sign the form he did not fill out the bond number which delayed filing of the form further. Deakin again argued it is also “not the fault of the landlord”.
When asked why this evidence was not produced at the original hearing, Deakin said she did not realise the tenant was making a claim the landlord had failed to notify the Bond Centre of the change of landlord.
She told the tribunal because another property manager had been dealing with matters and this documentation was not available to her at the time of the original hearing.
Deakin added that she also assumed the Bond Centre had done its job and processed the change of landlord form and, had it done so, this situation would not have arisen.
Adjudicator K Stirling was not persuaded by Deakin’s arguments saying a property manager should attend a hearing ensuring all relevant evidence is presented – including relevant emails or other documents from the property management file no matter who has handled the tenancy and whether they are still in the role.
“It is only once the hearing concluded and a decision was made that was unfavourable to the landlord, that Lowe & Co searched its records for relevant documents.
“It is also only after the hearing that Lowe & Co made specific contact with the property manager dealing with the matter at the relevant time to obtain a statement from her about the matter.
“Those steps could and should have been taken prior to the original hearing. In that sense, the evidence is not ‘new’ in that it was not reasonably available at the first hearing.”
Claim rejected
Adjudicator Stirling said he did not accept the Bond Centre “did not do its job” when the form was sent through.
“On closer inspection of the email dated November 17 sent to the Bond Centre, it appears to have been sent to the wrong email address.
“Notably, the landlord does not appear to have followed up with the Bond Centre when it did not receive any response confirming the change had been made.
“The failure to make the change was not discovered until after the tenancy ended and resulted in the Bond Centre being unable to action an initial bond refund request filed by the landlord and ultimately delayed the bond refund causing the tenant concern and stress.
“There is also considerable public interest in ensuring landlords comply with their obligations under the RTA.”
He said ultimately, the landlord's application for rehearing in this case was no more than an attempt to do what Judge Broadmore in Heath v Wood said was impermissible: “A rehearing is not intended to provide an opportunity for a disappointed party to put further information before the tribunal.
“Although it is not strictly necessary to do so, I will add that the ‘new evidence’, even if admissible, does not advance the landlord's case, because it still shows the required form was not filed by the landlord in the required timeframe.”
He dismissed Lowe & Co’s application for a rehearing.
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