3. On 11 December 2008 the landlord served a 120 day notice to vacate on the tenant pursuant to s263(1) of the Residential Tenancies Act 1997. The termination date on the notice is 12 April 2008.

1. The tenant made an application on 31 January 2008 pursuant to s321(b) challenging the validity of the notice. The section referred to in the tenant's application is incorrect, the relevant section being s266. However, the hearing continued on the basis that the objection had been made pursuant to the correct section.

THE RESIDENTIAL TENANCIES ACT 1997

5. Section 263 of the Residential Tenancies Act 1997 provides -

"(1) A landlord may give a tenant notice to vacate rented premises without specifying a reason for the giving of the notice.

(2) The notice must specify a termination date that is not less than 120 days after the date on which the notice is given".

Section 266(2) provides -

"(2) A notice under section 261 or section 263 is of no effect if it was given in response to the exercise, or proposed exercise, by the tenant of a right under this Act. "

1. At the first hearing, I outlined to the parties the procedure in an application of this nature. It is, initially, for the tenant to provide some proof that there was a nexus between the tenant exercising her rights and the landlord's notice to vacate so that, prima facie, a connection as set out in s266 has been established. If that is done, the burden of proof shifts to the landlord to prove that the reason for serving the notice is not caught by that section. Accordingly, the landlord would probably need to give evidence as to the reason for giving the notice to vacate.

1. At the first hearing, I determined that the tenant's submission that the notice to vacate was in response to the exercise by her of a right under the Act as supported by the evidence of the previous Tribunal hearings, had enough substance to shift the burden to the landlord to give evidence to rebut that presumption. An adjournment was allowed to enable the landlord to attend and give evidence.

1. The landlord's daughter attended the hearing on behalf of her father. She gave evidence that her father was ill and could not attend. He has owned the premises for over 20 years and the previous hearings highlighted the deteriorated condition of the premises. Whilst the landlord had done the repairs required to keep the premises habitable, the situation is that they need major repair/ renovation. It is difficult to properly assess the amount of repairs needed while the tenant was in occupation as this requires negotiation as to access. On the face of it, the repair that the premises now require is extensive and cannot be carried out while the premises are occupied. Alternately, after assessing the situation, the landlord may decide to sell the premises.

2. The agent's evidence was that if the property is sold, it will probably be demolished due to the condition of the premises and as two units could be built on the land.

10. Mr Darling's submission on behalf of the tenant was that the notice was caught by s266(2) because of the history of the proceedings and because the landlord has another option. This is to decide what to do with the premises and then serve a 60 day notice. He said that it is illogical for the landlord to have a non rent situation while the landlord decides what to do with the premises. Mr Darling said, in effect, the landlord should decide what to do with the premises and serve a 60 day notice at that time.

1. In reply, the landlord said that a 60 day notice was not given because the landlord had yet to decide what to do with the premises. The landlord acknowledged that he could not, at this time, prove a 60 day notice. The landlord was willing to give the tenant the longer 120 day notice in order to leave his options open. The landlord agreed with the tenant that he had waited until the completion of the previous matters before serving the notice. Those matters had been resolved as specified in the order of 10 December 2007 and the landlord had complied with the orders made by the Tribunal. However, the landlord said that the notice was not given in response to the exercise by the tenant of her rights under the Act. The landlord's response to the tenant's exercise of her rights was to attend Tribunal hearings and comply with the Tribunal orders.
2. The tenant is relying on the evidence of coincidence, namely she had served notice to repair and taken action at the Tribunal with respect to that notice and was then given a notice to vacate. Her point is it must be that that was the cause of the notice to vacate. The landlord has asserted to the Tribunal that the previous hearings made evident to the landlord that there are major problems with the premises. The repairs that have been done to date by the landlord are probably not adequate in the long term; for example, the wiring that has been constantly repaired will probably need to be completely replaced. The landlord has determined, in effect, that the premises are at the end of their lettable life in their present condition. The notice was not in response to the tenant exercising her rights but was a result of the condition of the premises and the landlord deciding that the time had come to change the condition of the premises or sell them.

13. There is nothing in the RTAct that provides that premises must be used for housing. Mr Darling made much of the landlord being made to choose what he intends to do with the premises before he obtains possession but this is not a requirement of the Act. An owner may choose to give a 120 day notice and, if he wishes, to leave premises vacant while he assesses the situation.

1. Section 266(2) provides that the notice is of no effect if it is given in response to the exercise by a tenant of a right under the Act. The evidence here supports the findings that the tenant's exercise of her rights under the Act were resolved between the parties at the Tribunal. However, those matters brought to the attention of the landlord that the premises could not continue to be rented in their present condition. A decision needs to be made as to what to do with the premises and, in order to make that decision, the landlord requires vacant possession to properly assess the premises and his options. For this reason, he served a 120 day notice. The notice does not fall within the provisions of s266(2).