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 2024 amendments to the Residential Tenancies Act (RTA) clarified that the rules apply to any situation where a landlord terminates a tenancy in response to any person or organisation exercising a legal power against them under the RTA or any other law. For example, a landlord cannot end a tenancy because another 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 the termination notice if they want the Tribunal to declare that the notice is of no effect (invalid) at the same time that they determine whether it is retaliatory. This gives the tenant the option to stay on in their rental home if their case is won.
Even if the tenant moves out, they still have 12 months to apply to the Tenancy Tribunal to have the notice declared retaliatory and to claim damages.
Proving that termination notice is retaliatory
Proving that a termination notice is retaliatory can be challenging for periodic tenancies given the law allows a landlord to issue a 90-day no-cause termination without providing any reason why they are ending the tenancy.
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).
Case Study
Tenants applied to the Tenancy Tribunal for their termination notice to be deemed retaliatory. 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'.”
(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.)
If a tenant is taking a case of retaliatory notice to the Tenancy 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.
Note that 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).
