What was Tenancy Tribunal case 4432568 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4432568?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4432568?

The primary dispute was Rent arrears. Related themes: Cleanliness, Unit Titles.

Where can I read the official tribunal order for case 4432568?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9196603-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4432568 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4432568?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4432568?

The primary dispute was Rent arrears. Related themes: Cleanliness, Unit Titles.

Where can I read the official tribunal order for case 4432568?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9196603-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4432568 — Rent arrears

Order

The application is dismissed.
The bond of $1,620.00 ([Bond number suppressed]) should be returned to [The respondent/s]
An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

Reasons

In 2019 this tenancy commenced with [The tenant/s] renting this apartment from Fair Rentals Ltd (FRL) to provide social housing for their clients.
FRL now applies for rent arrears and unpaid gas bills totalling over $30,000 as the rent ceased being paid in June 2021. They argue that they only became aware the premise was not being used by [The tenant/s] clients in November 2022 at mediation and so effectively termination was agreed upon then. They therefore seek rent arrears to 11 December 2022 which allows for 28 days’ in lieu of notice from the mediation date.
[The tenant/s] advise that on 17 February 2021 an incident occurred rendering the premise uninhabitable. They say they were advised to rehome the tenant they had in the property at the time which they did the following day, and because of that proceeded on the basis that the tenancy had ended. It came to their attention some months later that they were still paying rent for a premise they were not using and which they thought the tenancy had terminated on. The continued paying of rent they say was due to an administrative error. They raised this with FRL but received no meaningful response. They therefore ceased paying rent.
FRL agree the premise was uninhabitable for a period but say that no official notices were provided by either party at the time as required by the Residential Tenancies Act 1986 (RTA), therefore the tenancy continued. They also agree they directed [The tenant/s] to evict their tenant in February but proceeded on the basis the tenancy was continuing with [The tenant/s].
Both parties continue to have a good relationship and agree this situation has arisen because of a number of miscommunications. They now wish the Tribunal to clarify when the tenancy actually ended.
The parties have provided copies of emails between them from the relevant time. What can be gleaned from these correspondences is as follows: a. On 12 February 2021 Mr Debas, for FRL, emailed [The tenant/s] twice. The pertinent parts of those emails are: 11:55am “please evict this tenant and get the property professionally cleaned...If you do not want this apartment let me know.”
06pm “Landlord has requested for revoking the contract [The tenant/s]...effective immediately. Please get your tenant out and handover a professionally cleaned property”. b. On 17 February 2021 the tenant flooded five floors of the building and damaged the apartment rendering it uninhabitable. He was relocated by [The tenant/s] as a result of this event. c. On 31 May 2021 [Tenant’s representative] for [The tenant/s] emailed FRL asking why they were still paying rent for a property they had received no update on. Mr Debas responded saying he was waiting for [The tenant]’s confirmation that the cleaning had been undertaken and the inspection arranged. [Tenant’s representative] responded asking if the repairs had been completed. Mr Debas replied asking her if the repairs had been completed. d. Some further emails from FRL following up on rent arrears.
Initially it appears that neither party was taking responsibility for the repair work and there was confusion as to what each party expected of the other. Who did undertake the repairs and who paid remains, on the evidence, unclear. The communication between the parties was on the whole unclear and unspecific.
Sections 59 & 59A deals with the ending of a tenancy due to the premise becoming destroyed or so seriously damaged that they become uninhabitable. However, neither party invoked these sections at the time by serving the required notice.
Having considered the emails, I am satisfied that on 12 February 2021 FRL terminated the tenancy. They used the words “revoking the contract” and told [The tenant/s] to remove their tenant which they duly did. Whilst this was not a formal termination in the sense that it accorded with the requirements of the RTA, I consider it a constructive termination, especially as [The tenant/s] acted on those instructions and have not used the property since 18 February 2021.
I further note that section 51(4) of the RTA states that no notice to terminate shall be held invalid for any failure to comply strictly with the requirements so long as the notice is in writing, the intention is clear, and any non-compliance is not such as to mislead or affect unjustly the interests of the recipient. I find that Mr Debas’s email meets those conditions.
FRL appears to have left it to [The tenant/s] to “handover” the property, presumably meaning return the keys and arrange an inspection. [The tenant/s] have not done this as there was considerable damage to be repaired which they had understood the body corporate were undertaking.
As FRL had effectively terminated the tenancy, and as they are the landlords here, it was their obligation to follow up on the termination procedures. They were aware the tenant had vacated as they knew initially it was uninhabitable and then presumably that the repairs were being undertaken. Mr Debas said the property was uninhabitable for approximately three to five months.
There is no evidence of FRL advising [The tenant/s] when the property was ready for use again. Therefore, even if the tenancy had continued, [The tenant/s] had not been told when they could take back possession which essentially renders the tenancy useless to [The tenant/s].
Further, even if the tenancy had continued, section 49 of the RTA requires the party who is the victim of a tenancy agreement breach to take all reasonable steps to limit the damage or loss arising from the breach in accordance with the general law proposition of mitigation of loss. Therefore, FRL were under an obligation to clarify the status of the tenancy and reduce the rent arrears. If agreement could not have been reached as to when the tenancy ended in 2021, it was at that stage they should have applied to the Tribunal for clarification, not over a year later. FRL were negligent in not following up this matter to conclusion earlier.
Accordingly, I am satisfied that the tenancy ended on 18 February 2021. As [The tenant/s] have paid rent well in excess of that date there are no arrears, which is what this application is for, and if anything,[The tenant/s] have overpaid. However, as [The tenant/s] has made no claim, I make no direction in that respect.
The gas bills FRL seek compensation for also relate to the period after February 2021, therefore as [The tenant/s] did not have use of the property during this period, they are not liable for them.
Therefore, these claims are dismissed, and the bond should be returned to [The tenant/s]. Suppression
Both parties seek suppression. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. As [The tenant/s] were successful, but FRL were not, I direct that only [The tenant]’s details be redacted from the published order.

Order

The application is dismissed.
The bond of $1,620.00 ([Bond number suppressed]) should be returned to [The respondent/s]
An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

Reasons

In 2019 this tenancy commenced with [The tenant/s] renting this apartment from Fair Rentals Ltd (FRL) to provide social housing for their clients.
FRL now applies for rent arrears and unpaid gas bills totalling over $30,000 as the rent ceased being paid in June 2021. They argue that they only became aware the premise was not being used by [The tenant/s] clients in November 2022 at mediation and so effectively termination was agreed upon then. They therefore seek rent arrears to 11 December 2022 which allows for 28 days’ in lieu of notice from the mediation date.
[The tenant/s] advise that on 17 February 2021 an incident occurred rendering the premise uninhabitable. They say they were advised to rehome the tenant they had in the property at the time which they did the following day, and because of that proceeded on the basis that the tenancy had ended. It came to their attention some months later that they were still paying rent for a premise they were not using and which they thought the tenancy had terminated on. The continued paying of rent they say was due to an administrative error. They raised this with FRL but received no meaningful response. They therefore ceased paying rent.
FRL agree the premise was uninhabitable for a period but say that no official notices were provided by either party at the time as required by the Residential Tenancies Act 1986 (RTA), therefore the tenancy continued. They also agree they directed [The tenant/s] to evict their tenant in February but proceeded on the basis the tenancy was continuing with [The tenant/s].
Both parties continue to have a good relationship and agree this situation has arisen because of a number of miscommunications. They now wish the Tribunal to clarify when the tenancy actually ended.
The parties have provided copies of emails between them from the relevant time. What can be gleaned from these correspondences is as follows: a. On 12 February 2021 Mr Debas, for FRL, emailed [The tenant/s] twice. The pertinent parts of those emails are: 11:55am “please evict this tenant and get the property professionally cleaned...If you do not want this apartment let me know.”
06pm “Landlord has requested for revoking the contract [The tenant/s]...effective immediately. Please get your tenant out and handover a professionally cleaned property”. b. On 17 February 2021 the tenant flooded five floors of the building and damaged the apartment rendering it uninhabitable. He was relocated by [The tenant/s] as a result of this event. c. On 31 May 2021 [Tenant’s representative] for [The tenant/s] emailed FRL asking why they were still paying rent for a property they had received no update on. Mr Debas responded saying he was waiting for [The tenant]’s confirmation that the cleaning had been undertaken and the inspection arranged. [Tenant’s representative] responded asking if the repairs had been completed. Mr Debas replied asking her if the repairs had been completed. d. Some further emails from FRL following up on rent arrears.
Initially it appears that neither party was taking responsibility for the repair work and there was confusion as to what each party expected of the other. Who did undertake the repairs and who paid remains, on the evidence, unclear. The communication between the parties was on the whole unclear and unspecific.
Sections 59 & 59A deals with the ending of a tenancy due to the premise becoming destroyed or so seriously damaged that they become uninhabitable. However, neither party invoked these sections at the time by serving the required notice.
Having considered the emails, I am satisfied that on 12 February 2021 FRL terminated the tenancy. They used the words “revoking the contract” and told [The tenant/s] to remove their tenant which they duly did. Whilst this was not a formal termination in the sense that it accorded with the requirements of the RTA, I consider it a constructive termination, especially as [The tenant/s] acted on those instructions and have not used the property since 18 February 2021.
I further note that section 51(4) of the RTA states that no notice to terminate shall be held invalid for any failure to comply strictly with the requirements so long as the notice is in writing, the intention is clear, and any non-compliance is not such as to mislead or affect unjustly the interests of the recipient. I find that Mr Debas’s email meets those conditions.
FRL appears to have left it to [The tenant/s] to “handover” the property, presumably meaning return the keys and arrange an inspection. [The tenant/s] have not done this as there was considerable damage to be repaired which they had understood the body corporate were undertaking.
As FRL had effectively terminated the tenancy, and as they are the landlords here, it was their obligation to follow up on the termination procedures. They were aware the tenant had vacated as they knew initially it was uninhabitable and then presumably that the repairs were being undertaken. Mr Debas said the property was uninhabitable for approximately three to five months.
There is no evidence of FRL advising [The tenant/s] when the property was ready for use again. Therefore, even if the tenancy had continued, [The tenant/s] had not been told when they could take back possession which essentially renders the tenancy useless to [The tenant/s].
Further, even if the tenancy had continued, section 49 of the RTA requires the party who is the victim of a tenancy agreement breach to take all reasonable steps to limit the damage or loss arising from the breach in accordance with the general law proposition of mitigation of loss. Therefore, FRL were under an obligation to clarify the status of the tenancy and reduce the rent arrears. If agreement could not have been reached as to when the tenancy ended in 2021, it was at that stage they should have applied to the Tribunal for clarification, not over a year later. FRL were negligent in not following up this matter to conclusion earlier.
Accordingly, I am satisfied that the tenancy ended on 18 February 2021. As [The tenant/s] have paid rent well in excess of that date there are no arrears, which is what this application is for, and if anything,[The tenant/s] have overpaid. However, as [The tenant/s] has made no claim, I make no direction in that respect.
The gas bills FRL seek compensation for also relate to the period after February 2021, therefore as [The tenant/s] did not have use of the property during this period, they are not liable for them.
Therefore, these claims are dismissed, and the bond should be returned to [The tenant/s]. Suppression
Both parties seek suppression. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. As [The tenant/s] were successful, but FRL were not, I direct that only [The tenant]’s details be redacted from the published order.

Tenancy Tribunal case 4432568 — Rent arrears

At a glance

Tenancy Tribunal case 4432568 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions