What was Tenancy Tribunal case 4451940 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4451940?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4451940?

The primary dispute was Rent arrears. Related themes: Leaks.

Where can I read the official tribunal order for case 4451940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9291074-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4451940 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4451940?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4451940?

The primary dispute was Rent arrears. Related themes: Leaks.

Where can I read the official tribunal order for case 4451940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9291074-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 37 Victoria Avenue, Remuera, Auckland 1050 Tenancy Tribunal Case 4451940 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The Tenancy Agreement between Street Smart Property Management Ltd and Roda Bulamba is declared to be of no effect.
The Tenancy Agreement between Street Smart Property Management Ltd and Carron is declared to have continued until 9 January 2023.

Reasons

This is a rehearing of an application that was originally heard on 31 January 2023.
All three parties attended the rehearing.
The landlord has applied for rent arrears following the end of the tenancy.
During the hearing the landlord stated he was no longer seeking reimbursement of the filing fee. Background
The original tenant Carron Wells, signed a tenancy agreement for a two-year fixed-term tenancy to be begin on 14 March 2022. Ms Wells then advertised for a flatmate and in July 2022, Roda Bulamba moved in. Ms Bulamba paid rent to Ms Wells.
In October 2022 Ms Wells decided to move out and she offered the remainder of the fixed-term tenancy to Ms Bulamba. Ms Bulamba accepted. From October 27 2022, email correspondence was exchanged between the landlord Mr Lee, and Ms Wells and Ms Bulamba around Ms Bulamba taking over the tenancy.
Mr Lee sent a Change of tenant form to Ms Bulamba and Ms Wells and this form was completed on 03 November 2022 with all three parties signing it. This form sets out that Ms Wells is the only original tenant, and she is leaving, and Ms Bulamba will be the only remaining tenant. It is implicit in the form that Ms Bulamba is taking over the tenancy.
The Change of tenant form is three pages long. The third page provides information to assist in completing the form and includes: At least one of the original tenants must be continuing to rent the property and include his/her name in this section. If all original tenants are moving out do not use this form. You must instead complete a bond refund form to have the existing bond refunded. The new tenants should complete a bond lodgement form with the landlord to lodge a new bond for the new tenancy.
It is clear from this information, that because all the original tenants were leaving, this Change of tenant form was not the correct form to use. The form does however set out who the landlord is and who the tenants are. Prior to this, Ms Bulamba states she was unaware that Mr Lee was the landlord. She says it was her belief that Ms Wells owned the property. The form also records that all parties agreed and intended, that as of 08 December 2022, Ms Bulamba would take over as the only named tenant for the remaining period of the fixed-term tenancy that Ms Wells had signed.
For the next two weeks, all parties were happy with this arrangement.
On the night of 17 November 2022 it rained heavily and there was a serious leak in a bedroom that another person was staying in.
The next day a trade-person attended, cleaned the gutters and installed a gutter-guard to prevent more flooding.
Ms Balumba was clearly not happy with the situation and at this point she decided she no longer wanted to take over the tenancy. She sought advice from Tenancy Services, Citizen’s Advice Bureau, a family friend and a roofing specialist from a company called Roof Buddy.
On the strength of the advice she received, Ms Bulamba gave notice that she would not be taking over the tenancy and she moved out on 3 December 2022.
Mr Lee and Ms Wells then set about finding a replacement tenant, who moved in on 9 January 2023.
Mr Lee filed a claim with Tenancy Services against Ms Bulamba to recoup lost rent from 13 December 2022 until 09 January 2023. The application was heard on 31 January 2023 and without Ms Bulamba in attendance, an award was made against Ms Bulamba for the four weeks rent, $3180.00.
The bond which was the same amount, four weeks rent, was then released to Mr Lee to cover the rent arrears.
Ms Wells who had originally paid the bond, set about trying to get reimbursement of the bond from Ms Bulamba. This was the first that Ms Bulamba says she knew that there had been a hearing. At this point, Ms Bulamba applied for a rehearing.
A rehearing-hearing was held on 30 May 2023 and the rehearing was granted. Ms Wells was added as a party. This rehearing was scheduled before me to hear the matter afresh and this decision arises from that rehearing. Analysis
When they signed the Change of tenant form, all the parties intended that Ms Bulamba would be taking over the tenancy.
The Residential Tenancies Act 1986, section 13 sets out that a landlord must ensure that the tenancy agreement is in writing, they must sign the agreement and they must provide a copy of the agreement to the tenant. To not do so is an unlawful act. These are responsibilities that the Act imposes on the landlord, for the benefit of the tenant.
The fact that Ms Bulamba was not on the original tenancy agreement is relevant in that she had never been provided the original tenancy agreement or any supporting documentation.
In providing the Change of tenant form to Ms Bulamba, the landlord unwittingly made a serious error in that he purported to create a tenancy with a person who had never been provided with a written tenancy agreement. Ms Bulamba submitted that until the time she moved out she never received the tenancy agreement or related written material. This was an error that would have potentially put the landlord in breach of section 13 of the Residential Tenancies Act 1986 and in doing so he would have committed an unlawful act. It is the reason for the paragraph on page 3 of the Change of tenant form that advises parties not to use that form unless there is an original tenant remaining on the tenancy, which in this case there was not.
This is not a situation where all parties entered into an informal contractual relationship, worked out the terms as they went along and then formalised the contract in written form at a later date. On 18 November 2022 when Ms Bulamba decided she no longer wanted to take the tenancy, and on 3 December 2022 when Ms Bulamba vacated the premises, Ms Bulamba had not received a written tenancy agreement and the intended tenancy had still not passed its start date.
I find that the error made by the landlord in attempting to assign the tenancy to Ms Bulamba, is of such a nature that, given that she was never a named tenant on the original tenancy agreement and given that her purported tenancy agreement had not yet come into effect, it is fatal to the tenancy agreement.
The original lease between Carron Wells and Street Smart Property Rental Ltd remained in effect until 9 January 2023.
As Street Smart Property Rental Ltd claimed the bond that had been lodged in the name of Carron Wells after the first hearing on 31 January 2023, no orders regarding payment are necessary.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The Tenancy Agreement between Street Smart Property Management Ltd and Roda Bulamba is declared to be of no effect.
The Tenancy Agreement between Street Smart Property Management Ltd and Carron is declared to have continued until 9 January 2023.

Reasons

This is a rehearing of an application that was originally heard on 31 January 2023.
All three parties attended the rehearing.
The landlord has applied for rent arrears following the end of the tenancy.
During the hearing the landlord stated he was no longer seeking reimbursement of the filing fee. Background
The original tenant Carron Wells, signed a tenancy agreement for a two-year fixed-term tenancy to be begin on 14 March 2022. Ms Wells then advertised for a flatmate and in July 2022, Roda Bulamba moved in. Ms Bulamba paid rent to Ms Wells.
In October 2022 Ms Wells decided to move out and she offered the remainder of the fixed-term tenancy to Ms Bulamba. Ms Bulamba accepted. From October 27 2022, email correspondence was exchanged between the landlord Mr Lee, and Ms Wells and Ms Bulamba around Ms Bulamba taking over the tenancy.
Mr Lee sent a Change of tenant form to Ms Bulamba and Ms Wells and this form was completed on 03 November 2022 with all three parties signing it. This form sets out that Ms Wells is the only original tenant, and she is leaving, and Ms Bulamba will be the only remaining tenant. It is implicit in the form that Ms Bulamba is taking over the tenancy.
The Change of tenant form is three pages long. The third page provides information to assist in completing the form and includes: At least one of the original tenants must be continuing to rent the property and include his/her name in this section. If all original tenants are moving out do not use this form. You must instead complete a bond refund form to have the existing bond refunded. The new tenants should complete a bond lodgement form with the landlord to lodge a new bond for the new tenancy.
It is clear from this information, that because all the original tenants were leaving, this Change of tenant form was not the correct form to use. The form does however set out who the landlord is and who the tenants are. Prior to this, Ms Bulamba states she was unaware that Mr Lee was the landlord. She says it was her belief that Ms Wells owned the property. The form also records that all parties agreed and intended, that as of 08 December 2022, Ms Bulamba would take over as the only named tenant for the remaining period of the fixed-term tenancy that Ms Wells had signed.
For the next two weeks, all parties were happy with this arrangement.
On the night of 17 November 2022 it rained heavily and there was a serious leak in a bedroom that another person was staying in.
The next day a trade-person attended, cleaned the gutters and installed a gutter-guard to prevent more flooding.
Ms Balumba was clearly not happy with the situation and at this point she decided she no longer wanted to take over the tenancy. She sought advice from Tenancy Services, Citizen’s Advice Bureau, a family friend and a roofing specialist from a company called Roof Buddy.
On the strength of the advice she received, Ms Bulamba gave notice that she would not be taking over the tenancy and she moved out on 3 December 2022.
Mr Lee and Ms Wells then set about finding a replacement tenant, who moved in on 9 January 2023.
Mr Lee filed a claim with Tenancy Services against Ms Bulamba to recoup lost rent from 13 December 2022 until 09 January 2023. The application was heard on 31 January 2023 and without Ms Bulamba in attendance, an award was made against Ms Bulamba for the four weeks rent, $3180.00.
The bond which was the same amount, four weeks rent, was then released to Mr Lee to cover the rent arrears.
Ms Wells who had originally paid the bond, set about trying to get reimbursement of the bond from Ms Bulamba. This was the first that Ms Bulamba says she knew that there had been a hearing. At this point, Ms Bulamba applied for a rehearing.
A rehearing-hearing was held on 30 May 2023 and the rehearing was granted. Ms Wells was added as a party. This rehearing was scheduled before me to hear the matter afresh and this decision arises from that rehearing. Analysis
When they signed the Change of tenant form, all the parties intended that Ms Bulamba would be taking over the tenancy.
The Residential Tenancies Act 1986, section 13 sets out that a landlord must ensure that the tenancy agreement is in writing, they must sign the agreement and they must provide a copy of the agreement to the tenant. To not do so is an unlawful act. These are responsibilities that the Act imposes on the landlord, for the benefit of the tenant.
The fact that Ms Bulamba was not on the original tenancy agreement is relevant in that she had never been provided the original tenancy agreement or any supporting documentation.
In providing the Change of tenant form to Ms Bulamba, the landlord unwittingly made a serious error in that he purported to create a tenancy with a person who had never been provided with a written tenancy agreement. Ms Bulamba submitted that until the time she moved out she never received the tenancy agreement or related written material. This was an error that would have potentially put the landlord in breach of section 13 of the Residential Tenancies Act 1986 and in doing so he would have committed an unlawful act. It is the reason for the paragraph on page 3 of the Change of tenant form that advises parties not to use that form unless there is an original tenant remaining on the tenancy, which in this case there was not.
This is not a situation where all parties entered into an informal contractual relationship, worked out the terms as they went along and then formalised the contract in written form at a later date. On 18 November 2022 when Ms Bulamba decided she no longer wanted to take the tenancy, and on 3 December 2022 when Ms Bulamba vacated the premises, Ms Bulamba had not received a written tenancy agreement and the intended tenancy had still not passed its start date.
I find that the error made by the landlord in attempting to assign the tenancy to Ms Bulamba, is of such a nature that, given that she was never a named tenant on the original tenancy agreement and given that her purported tenancy agreement had not yet come into effect, it is fatal to the tenancy agreement.
The original lease between Carron Wells and Street Smart Property Rental Ltd remained in effect until 9 January 2023.
As Street Smart Property Rental Ltd claimed the bond that had been lodged in the name of Carron Wells after the first hearing on 31 January 2023, no orders regarding payment are necessary.

Tenancy Tribunal case 4451940 — Rent arrears at Unit/Flat 4, 37 Victoria Avenue, Remuera, Auckland 1050

At a glance

Tenancy Tribunal case 4451940 — Rent arrears at Unit/Flat 4, 37 Victoria Avenue, Remuera, Auckland 1050

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