It is against the law for a landlord to give a tenant notice terminating their tenancy in response to the tenant making a complaint or exercising their rights. For example, if a tenant requests maintenance and the landlord issues a termination notice instead of carrying out the maintenance work. This is called retaliatory notice (s 54 RTA).
The landlord also cannot terminate a tenancy in response to other organisations exercising a legal power that they have under the Residential Tenancies Act. For example, a landlord cannot end a tenancy because an authority such as the Tenancy Services Compliance and Investigations Team has become involved.
The notice can be challenged through the Tenancy Tribunal
The tenant can apply to the Tenancy Tribunal to have a termination confirmed as retaliatory and declared an unlawful act (s 54 RTA). The Tribunal can order exemplary damages of up to $6,500 (as of January 2025) to be paid to the tenant (Schedule 1A RTA).
The tenant must apply to the Tenancy Tribunal within 28 working days of receiving their termination notice if they want to stay in the property. Within this timeframe, the tenant can apply for the Tribunal to declare the notice to be of no effect (allowing the tenant to stay) as well as determining whether the notice is retaliatory.
If the tenant moves out, they have 12 months to apply to the Tenancy Tribunal to have the notice declared retaliatory and to claim damages.
A tenant cannot make a claim of retaliatory notice if the landlord has applied to the Tenancy Tribunal to terminate the tenancy but has not issued a termination notice. A notice must be given for it to be deemed retaliatory. If no termination notice has been given and the decision about whether the tenancy will be ended is still to be made by the Tenancy Tribunal, the tenant can only challenge the application and the reasons the landlord is claiming for termination (see Tenancy Tribunal Order 4779397, 4774827, 4806117).
Proving that termination notice is retaliatory
The tenant must prove that the notice was given in response to a specific situation (or situations) where a tenant asserted their rights or made a complaint relating to the tenancy. However, this does not have to be the sole motivation for the landlord giving notice. A notice can be retaliatory if the landlord was partially motivated by the tenant asserting a right (s 54 RTA).
Proving that a notice is retaliatory can be challenging in periodic tenancies, but it is still possible if there is a strong case, even when the landlord claims they are simply exercising their right to issue a 90-day no-cause termination.
The Tenancy Tribunal has acknowledged that there will often be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events when considering if notice is retaliatory (see for example Tenancy Tribunal Order 5145508).
If a tenant is taking a case of retaliatory notice to the Tribunal, they should gather as much evidence as possible, including any texts or emails showing the landlord’s response when the tenant raised an issue and the wording of any notice given.
Find out more about going to the Tenancy Tribunal here.
Case Study - Tenant awarded exemplary damages for retaliatory notice
A tenant made a claim to the Tenancy Tribunal that their landlord’s 90-day notice was retaliatory. The notice was issued after the tenant made various complaints about the standard of the property and the lack of toilet facilities, according to the tenant.
The Tenancy Tribunal found that the landlord’s explanation for giving notice was “disingenuous”. The landlord claimed that he served notice over concern about methamphetamine use. However, the landlord had not carried out professional testing and was relying on a DIY kit and no baseline testing was done. The landlord also claimed that the tenant only began to seriously complain about the property after he accused him of dealing methamphetamine.
The landlord offered no other reason for the notice and therefore the Tenancy Tribunal found that he was motivated wholly, or in part, by the tenant’s complaints and that the notice was retaliatory. Exemplary damages of $2000 were awarded to the tenant.
In making their decision, the adjudicator noted that while a landlord can terminate a tenancy without reason by serving a 90-day notice, it is extremely important that landlords do not misuse this option to stop tenants from raising complaints.
Tenancy Tribunal Case 5350161, 5371861
Case Study - Tenants prove notice is retaliatory and therefore of no effect
Tenants applied to the Tenancy Tribunal for their termination notice to be deemed retaliatory and to be set aside, allowing them to stay on the property. Their landlord had given them 90 days’ notice that their fixed-term tenancy would not be renewed or continued as a periodic tenancy. The notice was given after the tenants complained about another of the landlord’s tenants who lived in a separate dwelling on the same property and was interfering with their right to quiet enjoyment.
The notice stated that the landlord was ending the tenancy due to financial circumstances and “demanding ongoing stress”, and that the property would be going on the market. The termination notice was deemed retaliatory by the Tenancy Tribunal on the basis that the landlord giving notice was at least partly motivated by the tenants exercising their right to quiet enjoyment.
The adjudicator stated that “I am very confident in concluding that the landlord’s decision to sell the premises was in part because of those tenant complaints, in fact that is indicated in the termination notice, describing the landlord being motivated by 'demanding ongoing stress".
As a consequence of the notice being declared retaliatory by the Tribunal, the termination notice was deemed to be of no effect. The tenants did not seek exemplary damages.
(Note that this case pre-dates the 2024 amendments to the Residential Tenancies Act. At the time of the case, landlords were only permitted to end a tenancy at the end of the fixed term period if lawful reasons were provided. In this situation, the landlord was relying on the right to end the tenancy for the purposes of selling the property.)
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