Spotlight On Suppression Order
Since the RTA changes it is harder for landlords to perform background checks on potential tenants, writes Sharon Cullwick.
1 March 2022
Recently the New Zealand Property Investors’ Federation, in conjunction with the New Zealand Property Investor magazine, surveyed more than 900 property investors throughout the country. Out of the 913 respondents, 38.4% had used the Tenancy Tribunal or mediation services. The survey highlighted that the Tenancy Tribunal had given name suppression to 17 tenants within the last 12 months, even though the landlord had won the case in each instance.
Landlords and tenants have the ability to resolve any disputes by self-resolution, FastTrack Resolution, mediation or a Tenancy Tribunal hearing. A Tenancy Tribunal hearing is often preferred as it is an independent judicial body that can issue a binding decision. The cost of applying for a tribunal hearing is $20.44 (including GST).
The Tenancy Tribunal hears about 20,000 cases each year, most due to rent arrears. The tribunal has the ability to hear more complex cases up to the value of $100,000 and can resolve a dispute in one of two ways – either by mediation or via a hearing with a Tenancy Adjudicator. Mediation is facilitated by the Ministry of Business, Innovation and Employment and details of outcomes are not publicly available. However, tribunal cases are available for the public to examine. Results from the hearings are called Tenancy Tribunal Orders and most orders are available on the Ministry of Justice website for three years after a hearing.
Before amendments to the Residential Tenancies Act (RTA), name suppression provisions were unclear. However, in most cases the tenants’ and landlords’ details were recorded and published. The RTA changes in February 2021 made a provision that the Tenancy Tribunal, on the application of any party or on its own initiative, can order that name and identifying details be suppressed and can be removed from publication. This is supposed to be where a party has been wholly or substantially successful in their case.
Landlords have always been advised to search the Ministry of Justice website as well as other credit and history checks. Two of the main requirements a landlord has are for the rent to be paid on time and in full, and the property to be looked after. However, since changes to the RTA, whereby a suppression order can be made to hide identifying details, it is harder for landlords to perform background checks on potential tenants.
On studying the tribunal orders on the ministry site “none” seems to be a very popular name for tenants and landlords and the address at “no address” features a lot. It is impossible for a landlord to find out the history of a potential tenant without identifiable details on tribunal orders. It also has come to my attention that some of the orders which involve emergency housing providers are requesting name suppression on behalf of a tenant even though the tenant did not win the case. This makes it extremely risky for a private landlord to decide if they will help a particular marginal tenant move out of an emergency housing situation. I have heard that some adjudicators are applying name suppression to tenants on the basis that to do otherwise may prejudice the tenants’ ability to find future tenancies. Surely that should be the intention – misbehave, and you then make life harder for yourself. That is, and should be, part of the penalty, especially as Tenancy Adjudicators are independent judicial officers and therefore the Tribunal is unable to give any definitive advice about how suppression provisions will be interpreted and the development of case law will provide guidance. I do not believe this is what the intentions of the RTA change implied.
Sharon Cullwick, Executive Officer, NZ Property Investors’ Federation