What was Tenancy Tribunal case 4535330 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4535330?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535330?

The dispute type was not classified.

Where can I read the official tribunal order for case 4535330?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9231713-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4535330 about?

The tribunal order states: The Tribunal orders suppression of the Tenant names and identifying details.

How much money was awarded in case 4535330?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4535330?

The dispute type was not classified.

Where can I read the official tribunal order for case 4535330?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9231713-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4535330 — Tenancy dispute

Order

The Tribunal orders suppression of the Tenant names and identifying details.
The application that the landlord pay the bond to the tenants is dismissed.

Reasons

Both parties attended the hearing. Mrs Walker appeared for the landlord.
The tenants had a fixed term tenancy agreement from May 2021 until 2 February 2022. They asked the landlord if they could move out early, at the end of the university year. The landlord, who was in Australia at the time, said no, but said the tenants could have boarders over summer or sublet until 2 February 2022.
The tenants completed paperwork and new tenants – who I will call Z - moved in at the start of November. Z paid the tenants $960 each, being their share of the bond. Unfortunately, the change of tenant form signed by the tenants and Z was not sent to the Bond Centre. Z stayed on after 2 February 2022. Mrs Walker was still in Australia.
When Z moved out the landlord made a one party application for the bond, which was still in the names of the tenants. The Bond Centre paid $1920 to Mrs Walker. This means Z are out of pocket. The tenants want Mrs Walker to pay the $1920 to them, so they can refund Z. Alternatively, they want me to make an order that Mrs Walker pay $1920 to Z. The questions I have to decide are: • Is this a dispute between flatmates? • Did the tenants agree to extend their tenancy after 2 February 2022? • Was there any breach by the tenants or by Z? • Should Mrs Walker have the bond? • Who are the correct parties for the application to the Tribunal?

Is this a dispute between flatmates?

I was concerned that this was a dispute between flatmates about a bond. Having heard from the tenants and the landlord, it seems most likely this is a dispute between a landlord and either the tenants, or Z. This means I have the jurisdiction to decide this application.

Did the tenants agree to extend their tenancy after 2 February 2022?

Mrs Walker agreed the tenants could find someone else to pay rent and live in the house from November 2021 until 2 February 2022. When Z moved in the tenants completed all the paperwork required by the landlord. Mrs Walker submitted that it mattered whether Z were there as boarders or as subtenants, but I am not persuaded by this submission. What matters at this stage is that the tenants moved out and Z moved in. For three months Z paid all the weekly rent to the tenants, and the tenants paid the rent to the landlord.
On 4 November 2021 the landlord emailed the tenants and expressed concern that they did not want to get “locked in” with another lease because they were “unsure of their future prospects with the property”. They said “your lease ends 2 nd Feb 2022, HOWEVER, the girls can apply for another lease when it is advertised and they will be given consideration”. In a later email the same day the landlord said having boarders would be easier, “it is purely up to you, if you do this, remember you are responsible and liable for the rent and any damage applicable until 2 nd Feb 2022”. I find there was an understanding the tenants were responsible for Z’s actions until 2 February 2022.
On 22 January 2022 the tenants advised the landlord that Z had paid $980 x 2 to the tenants in November and that they would “call the bond agency and get them to change the name and details of our bond into their name meaning that our bond will now be their bond”. The tenants and Z did fill out change of tenant forms for the Bond Centre, and they were attached to an email sent to the landlord in Australia on 30 January 2022. The tenants asked the landlord to sign the forms and “send it either back to me or to the agency themselves and they will change it over”. The tenants assumed this had been done because they did not hear from the landlord again. The landlord said she never received the forms to sign. Given that all the other emails were received and replied to, it seems most likely to me this email was also sent to the correct email address. I accept that the landlord may not have received it.
Mrs Walker submitted that the tenants should have checked the house on 2 February 2022 to make sure everything was ok before Z moved out, and she is right about that. However, the landlord should also have checked the house, or had someone check the house for her, because by this time the landlord had agreed to a tenancy with Z. I have been provided with a text from the landlord to Z – sent on 26 January 2022 - which said “I spoke to [Redacted] (our agent) he has the bank account number for you, and the first payment is $490 starting 3 Feb 2022. I’ll try to get someone for the lease, and if not I’ll do a 1 page agreement for you...”. I find the landlord started a new tenancy agreement with Z on 3 February.
At the hearing Mrs Walker submitted that originally she agreed Z could either be “boarders” or that Z could be signed up for another whole year. She blamed the tenants for lost rent because Z moved out in November 2022, and the landlord’s preference was for a fixed term until February 2022. However, the supporting documents show that the landlord did not want to be locked into another lease initially, had agreed to a new tenancy with Z starting 3 February 2022, and knew that Z should be given a new tenancy agreement to sign. I find it not fair to blame the tenants.
Mrs Walker further submitted that it was the tenants’ fault that Z were in possession without a tenancy agreement from 3 February, and that the landlord’s intention was to “attach the new agreement to the original tenants – original agreement dated 9 May 2021”. I do not find the emails and texts support this submission.

Was there any breach by the tenants or by Z?

At the first hearing Mrs Walker said she wanted to file a cross application. She has not done this. During the hearing Mrs Walker said the tenants paid all their rent and she has no evidence they did not leave the house in a reasonable condition. She said Z paid all their rent and kept the house nice and clean.
I do not agree that the tenants owe $2980 ($4,900 minus the bond of $1,920) being loss of rent from 23 November 2022 until February 2022 because the tenants did not sign a fixed term tenancy agreement with Z. The tenants’ stopped being responsible for the tenancy on 2 February 2022. It seems likely to me any loss is because the landlord did not sign a fixed term tenancy agreement with Z. To be clear, even if the landlord had filed a cross application, I would not allow this claim for lost rent.

Should Mrs Walker have the bond?

When the landlord returned from Australia they discovered the bond was still in the names of the original tenants. I’m not sure when they realised this. This is not something they have ever raised with the tenants. At some point in November 2022 Mrs Walker made a one party application for the bond. The usual practice is for the Bond Centre to contact the tenants and ask if they object to the one party application. The tenants said they did not get the emails from the Bond Centre which is unfortunate. I note that Mrs Walker did nothing wrong in using the one party application process.
However, I am not persuaded Mrs Walker should have the bond. Mrs Walker’s submission is that Z paid all the rent and left the house in a reasonable condition. It seems most likely to me that she has no claim against Z’s bond. And, she has no claim against the tenants for lost rent either.

Who are the correct parties for the application to the Tribunal?

Z paid the equivalent of the bond money to the tenants. Even though the bond is still in the tenants’ names, everyone agreed on 22 January 2022 that the bond at the Bond Centre would become Z’s bond. This means Mrs Walker currently has Z’s bond. I cannot make an order that Mrs Walker pay Z because Z have not filed an application with the Tenancy Tribunal.
Z should file an application against Mrs Walker for the bond. This application number should be referenced and Z can ask that the same adjudicator deal with the application because of the background information I have.
I note that the RTA provides that, if Z applies for the refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. See section 22B(2) Residential Tenancies Act 1986 (RTA).
Alternatively, Mrs Walker could pay the bond of $1920 to Z. Suppression
No applications were made for suppression. The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.
The tenants are not the most successful party, but I am using my discretion to allow suppression. This is because the tenants have not breached any of their obligations under the RTA, parties are encouraged to use the Tribunal to settle disputes, and any public interest is in the law rather than the names of the tenants. Also, it is likely the tenants will need to rent again, and their names on a Tribunal order could be detrimental.

Reasons

Both parties attended the hearing. Mrs Walker appeared for the landlord.

The tenants had a fixed term tenancy agreement from May 2021 until 2 February 2022. They asked the landlord if they could move out early, at the end of the university year. The landlord, who was in Australia at the time, said no, but said the tenants could have boarders over summer or sublet until 2 February 2022.

The tenants completed paperwork and new tenants – who I will call Z - moved in at the start of November. Z paid the tenants $960 each, being their share of the bond. Unfortunately, the change of tenant form signed by the tenants and Z was not sent to the Bond Centre. Z stayed on after 2 February 2022. Mrs Walker was still in Australia.

When Z moved out the landlord made a one party application for the bond, which was still in the names of the tenants. The Bond Centre paid $1920 to Mrs Walker. This means Z are out of pocket. The tenants want Mrs Walker to pay the $1920 to them, so they can refund Z. Alternatively, they want me to make an order that Mrs Walker pay $1920 to Z. The questions I have to decide are: • Is this a dispute between flatmates? • Did the tenants agree to extend their tenancy after 2 February 2022? • Was there any breach by the tenants or by Z? • Should Mrs Walker have the bond? • Who are the correct parties for the application to the Tribunal?

Is this a dispute between flatmates?

I was concerned that this was a dispute between flatmates about a bond. Having heard from the tenants and the landlord, it seems most likely this is a dispute between a landlord and either the tenants, or Z. This means I have the jurisdiction to decide this application.

Did the tenants agree to extend their tenancy after 2 February 2022?

Mrs Walker agreed the tenants could find someone else to pay rent and live in the house from November 2021 until 2 February 2022. When Z moved in the tenants completed all the paperwork required by the landlord. Mrs Walker submitted that it mattered whether Z were there as boarders or as subtenants, but I am not persuaded by this submission. What matters at this stage is that the tenants moved out and Z moved in. For three months Z paid all the weekly rent to the tenants, and the tenants paid the rent to the landlord.

On 4 November 2021 the landlord emailed the tenants and expressed concern that they did not want to get “locked in” with another lease because they were “unsure of their future prospects with the property”. They said “your lease ends 2 nd Feb 2022, HOWEVER, the girls can apply for another lease when it is advertised and they will be given consideration”. In a later email the same day the landlord said having boarders would be easier, “it is purely up to you, if you do this, remember you are responsible and liable for the rent and any damage applicable until 2 nd Feb 2022”. I find there was an understanding the tenants were responsible for Z’s actions until 2 February 2022.

On 22 January 2022 the tenants advised the landlord that Z had paid $980 x 2 to the tenants in November and that they would “call the bond agency and get them to change the name and details of our bond into their name meaning that our bond will now be their bond”. The tenants and Z did fill out change of tenant forms for the Bond Centre, and they were attached to an email sent to the landlord in Australia on 30 January 2022. The tenants asked the landlord to sign the forms and “send it either back to me or to the agency themselves and they will change it over”. The tenants assumed this had been done because they did not hear from the landlord again. The landlord said she never received the forms to sign. Given that all the other emails were received and replied to, it seems most likely to me this email was also sent to the correct email address. I accept that the landlord may not have received it.

Mrs Walker submitted that the tenants should have checked the house on 2 February 2022 to make sure everything was ok before Z moved out, and she is right about that. However, the landlord should also have checked the house, or had someone check the house for her, because by this time the landlord had agreed to a tenancy with Z. I have been provided with a text from the landlord to Z – sent on 26 January 2022 - which said “I spoke to [Redacted] (our agent) he has the bank account number for you, and the first payment is $490 starting 3 Feb 2022. I’ll try to get someone for the lease, and if not I’ll do a 1 page agreement for you...”. I find the landlord started a new tenancy agreement with Z on 3 February.

At the hearing Mrs Walker submitted that originally she agreed Z could either be “boarders” or that Z could be signed up for another whole year. She blamed the tenants for lost rent because Z moved out in November 2022, and the landlord’s preference was for a fixed term until February 2022. However, the supporting documents show that the landlord did not want to be locked into another lease initially, had agreed to a new tenancy with Z starting 3 February 2022, and knew that Z should be given a new tenancy agreement to sign. I find it not fair to blame the tenants.

Mrs Walker further submitted that it was the tenants’ fault that Z were in possession without a tenancy agreement from 3 February, and that the landlord’s intention was to “attach the new agreement to the original tenants – original agreement dated 9 May 2021”. I do not find the emails and texts support this submission.

Was there any breach by the tenants or by Z?

At the first hearing Mrs Walker said she wanted to file a cross application. She has not done this. During the hearing Mrs Walker said the tenants paid all their rent and she has no evidence they did not leave the house in a reasonable condition. She said Z paid all their rent and kept the house nice and clean.

I do not agree that the tenants owe $2980 ($4,900 minus the bond of $1,920) being loss of rent from 23 November 2022 until February 2022 because the tenants did not sign a fixed term tenancy agreement with Z. The tenants’ stopped being responsible for the tenancy on 2 February 2022. It seems likely to me any loss is because the landlord did not sign a fixed term tenancy agreement with Z. To be clear, even if the landlord had filed a cross application, I would not allow this claim for lost rent.

Should Mrs Walker have the bond?

When the landlord returned from Australia they discovered the bond was still in the names of the original tenants. I’m not sure when they realised this. This is not something they have ever raised with the tenants. At some point in November 2022 Mrs Walker made a one party application for the bond. The usual practice is for the Bond Centre to contact the tenants and ask if they object to the one party application. The tenants said they did not get the emails from the Bond Centre which is unfortunate. I note that Mrs Walker did nothing wrong in using the one party application process.

However, I am not persuaded Mrs Walker should have the bond. Mrs Walker’s submission is that Z paid all the rent and left the house in a reasonable condition. It seems most likely to me that she has no claim against Z’s bond. And, she has no claim against the tenants for lost rent either.

Who are the correct parties for the application to the Tribunal?

Z paid the equivalent of the bond money to the tenants. Even though the bond is still in the tenants’ names, everyone agreed on 22 January 2022 that the bond at the Bond Centre would become Z’s bond. This means Mrs Walker currently has Z’s bond. I cannot make an order that Mrs Walker pay Z because Z have not filed an application with the Tenancy Tribunal.

Z should file an application against Mrs Walker for the bond. This application number should be referenced and Z can ask that the same adjudicator deal with the application because of the background information I have.

I note that the RTA provides that, if Z applies for the refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. See section 22B(2) Residential Tenancies Act 1986 (RTA).

Alternatively, Mrs Walker could pay the bond of $1920 to Z. Suppression

No applications were made for suppression. The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. See section 95A RTA.

The tenants are not the most successful party, but I am using my discretion to allow suppression. This is because the tenants have not breached any of their obligations under the RTA, parties are encouraged to use the Tribunal to settle disputes, and any public interest is in the law rather than the names of the tenants. Also, it is likely the tenants will need to rent again, and their names on a Tribunal order could be detrimental.

Tenancy Tribunal case 4535330 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4535330 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Is this a dispute between flatmates?

Did the tenants agree to extend their tenancy after 2 February 2022?

Was there any breach by the tenants or by Z?

Should Mrs Walker have the bond?

Who are the correct parties for the application to the Tribunal?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Is this a dispute between flatmates?

Did the tenants agree to extend their tenancy after 2 February 2022?

Was there any breach by the tenants or by Z?

Should Mrs Walker have the bond?

Who are the correct parties for the application to the Tribunal?

Topics & place

Residential Tenancies Act sections

Frequently asked questions