What was Tenancy Tribunal case 4568057 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 4568057?

Filing Fee: $20.44 awarded to landlord; Rent Due For Notice Period: $1,857.14 awarded to landlord

What type of tenancy dispute was case 4568057?

The dispute type was not classified.

Where can I read the official tribunal order for case 4568057?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9373192-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4568057 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 4568057?

Filing Fee: $20.44 awarded to landlord; Rent Due For Notice Period: $1,857.14 awarded to landlord

What type of tenancy dispute was case 4568057?

The dispute type was not classified.

Where can I read the official tribunal order for case 4568057?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9373192-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4568057 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4568057 — net $1,877.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent due for notice period	$1,857.14	Rent due for notice period
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,877.58
Bond	$2,000.00
Total payable by Tenant to Landlord	$1,877.58

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
Noeleen Kay Shead and Rory Michael Healion must pay [The landlord/s] $1,877.58 from the bond, calculated in accordance with the table below.
The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,877.58 Noeleen Kay Shead and Rory Michael Healion: $122.42

Reasons

Ms Shead and Mr Healion attended the hearing on 24 August 2023. [The landlord/s representative] attended for the landlord.
Both parties have made applications to the Tribunal.
The tenants have applied for refund of the bond of $2,000.00, refund of rent of $1,000.00 and reimbursement of the costs of drug testing of the premises of $360.53.
The landlord seeks payment of rent up to the end of the 28-day notice period of $1,857.14 and costs of lawn-mowing of $120.00. Background
Ms Shead viewed the premises and signed a tenancy agreement in joint names with Mr Healion on 3 April 2023. Mr Healion was overseas at the time.
The tenancy agreement was amended, at the tenants’ request, to start as from 21 April 2023.
Included in the tenancy agreement is additional term 15 (on page 5) which states that the agreement is: ... entirely conditional on the Tenant paying the sum of $3,000.00 (being rent in advance and bond) and this amount must be paid by the Tenant by 1pm on the 14/4/2023. Should the Tenant not pay the total sum by the appointed time then this agreement shall be deemed to have never become unconditional. Any portion of the sum paid (if any) shall be refunded and neither party shall have any claim against one another.
The tenancy agreement specified that the bond was $2,000.00 and rent in advance was $1,000.00.
These amounts were paid in two separate transactions on 13 April 2023.
Ms Shead obtained the keys to the premises on 21 April 2023. She raised a concern with the property manager about a “weed” smell in the towel cupboard and a hole in the floor of one room.
Mr Healion returned from overseas on 27 April 2023 and viewed the premises. He was not happy with a range of things (cleanliness, no power to the shed, some outdoor maintenance issues). He considered the house not ready to be occupied.
A planned meeting between the tenants and the property manager could not go ahead on 30 April 2023.
On 1 May 2023, the tenants gave written email notice to end the tenancy which was accepted by the landlord.
Mr Healion has not signed the tenancy agreement.

Is there a binding tenancy contract?

A tenancy is a legal contract.
For a binding contract to be formed there must be an agreement between the parties made up of an offer, a clear acceptance, and sufficient certainty as to the key terms of the agreement. For a contract to be binding there must also be something of value provided by each side (this is called “consideration”). From tenants it is usually rent or bond, and from landlords it is the promise to provide the premises on the tenancy start date.
The tenancy agreement named both Ms Shead and Mr Healion as joint tenants as the landlord’s offer to them to rent the premises was based on their joint application. Only Ms Shead signed the tenancy agreement as Mr Healion was away overseas at the time however I am satisfied that the intention was for a joint tenancy.
The important terms were recorded in the tenancy agreement.
On 13 April 2023, Ms Shead paid the advance rent of $1,000.00 and Mr Healion paid the bond of $2,000.00 as required by additional term 15.
Mr Healion said in the hearing that he told the property manager in a phone call that the bond money was paid “in good faith” and that he would have to view the property when he returned to New Zealand. However, the property manager said that she does not recall this being said, and that the landlord would not have agreed to this as it would mean turning down other prospective tenants who were ready to enter into the tenancy agreement.
I prefer the property manager’s evidence on this. My decision is that the contract became unconditional, or binding, when the bond and advance rent were paid. The fact that each tenant paid part of the money adds weight to the conclusion that they are joint tenants.
I am satisfied that there is a binding tenancy contract.

Are the tenants liable to pay rent for the 28-day notice period?

A periodic tenancy (not for a fixed term) can be ended by a tenant giving the landlord at least 28 days’ notice in writing. This is what the tenants did.
The tenants have now applied for a refund of the advance rent that they paid and say that they should not be liable to pay rent for the 28-day notice period. Their view is that the premises were not in a suitable state to be rented so they should be able to cancel the contract with no liability for rent.
Landlords have certain legal obligations at the beginning of a tenancy. These include to: a. Provide the premises in a reasonable state of cleanliness, 1 b. Provide the premises in a reasonable state of repair taking into account their age and character, 2 c. Take all reasonable steps to make sure there is nothing legally stopping the premises being lived in (eg; it has all required building and resource consents and is safe and sanitary), 3 d. Provide vacant possession on the date the tenancy starts which means that there is no one else living there and the premises are empty of anyone else’s belongings (including the landlord’s). 4
A tenant may be entitled to cancel a tenancy contract without liability for the usual notice period if an essential part of the contract is breached, or the effect of the breach is substantial. 5
The tenants did raise concerns about cleanliness and some maintenance issues from the start of the tenancy. However, after consideration of all the evidence, my conclusion is that the issues raised are not serious enough to allow the contract to be cancelled without liability for the notice period. My reasons are:- a. The landlord offered to arrange a drug test of the premises after Ms Shead said she thought there was a “weed” smell in the towel cupboard. Ms Shead arranged this herself and the results were negative for methamphetamine and the tester advised that marijuana cannot be tested for. There is no evidence of any harm from a lingering marijuana smell, even if it was present. I viewed a video of the inside of this cupboard during the hearing and did not see anything indicative of drug use. b. The landlord fixed the hole in the floor identified by Ms Shead so this was remedied promptly. c. There are no photos to show that the premises were not reasonably clean. d. There is no evidence that the tenants specified that there must be power to the outdoor sheds as an essential term of the agreement. e. Mr Healion said that there was an open inspection hole in the guttering which overflowed when it rained but there were no photos to allow me to 1 Section 45(1)(a) Residential Tenancies Act 1986 (RTA) 2 Section 45(1)(b) RTA 3 Section 36 RTA expresses this as there being “no legal impediment to the occupation of the premises for residential purposes”. 4 Section 37 RTA. 5 See section 37 Contracts & Commercial Law Act 2017. understand how serious this was, and the property manager did not know what he was referring to. f. The property manager volunteered information saying that the landlord had chosen to use the farm water supply for the premises as this was of better quality than that from the roof water tank situated at the house. The tenants did not evidence any problem with the water supply. g. The other maintenance issues raised by Mr Healion are not significant and relate only to the outside buildings, not the house, so cannot be said to be essential. h. The tenants did not say at the time of giving notice that they were cancelling the contract and expected to have all rent refunded. They said that they were giving the usual 28-days’ notice.
My decision is that the tenants are liable for rent for the notice period which is up to 30 May 2023 (the notice period starts from 3 May 2023 because of the rules about email notices). 6 The property manager confirmed that the next tenancy did not commence until after that date.
The rent ledger shows that the amount owing up to 30 May 2023 is $1,857.14. I award this amount.

Are the tenants required to pay for the lawnmowing during the notice period?

A tenant is usually required to leave the premises and the lawns reasonably tidy at the end of the tenancy which is at the end of the notice period; s40(1)(e) RTA.
However, in this case, I do not find this to be fair. The tenants had not moved into the premises, the landlord did not want them back at the property, they had handed back the keys, and they were not told that they would be liable for lawn mowing. This claim is dismissed.

Is the landlord required to pay for the drug test arranged by the tenants?

Ms Shead arranged and paid for a methamphetamine test at the premises which cost $360.53 (receipt provided).
A landlord is not legally required to test residential premises for methamphetamine or any other contaminant. In this case, the landlord chose not to do so. 6 The tenants’ email notice was given after 5pm on 1 May 2023. This means the notice is deemed received on the next working day which is on 2 May 2023; s136(9) RTA. The notice period starts on the first day after that; s136A RTA.
Ms Shead chose to test the premises. She did not ask the landlord to pay for this prior to doing so and no evidence was provided to show a reasonable cause for doing so (Ms Shead showed a video which she said showed a broken glass pipe in the towel cupboard, but I could not see anything resembling that).
I dismiss this claim by the tenants. Filing fees and suppression of names
The landlord has been substantially successful in the application so is entitled to be awarded the filing fee and to suppression of its name.
The bond is refunded in accordance with the orders made.

Claims and awards in Tenancy Tribunal application 4568057 — net $1,877.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent due for notice period	$1,857.14	Rent due for notice period
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,877.58
Bond	$2,000.00
Total payable by Tenant to Landlord	$1,877.58

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
Noeleen Kay Shead and Rory Michael Healion must pay [The landlord/s] $1,877.58 from the bond, calculated in accordance with the table below.
The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) immediately apportioned as follows: [The landlord/s]: $1,877.58 Noeleen Kay Shead and Rory Michael Healion: $122.42

Reasons

Ms Shead and Mr Healion attended the hearing on 24 August 2023. [The landlord/s representative] attended for the landlord.
Both parties have made applications to the Tribunal.
The tenants have applied for refund of the bond of $2,000.00, refund of rent of $1,000.00 and reimbursement of the costs of drug testing of the premises of $360.53.
The landlord seeks payment of rent up to the end of the 28-day notice period of $1,857.14 and costs of lawn-mowing of $120.00. Background
Ms Shead viewed the premises and signed a tenancy agreement in joint names with Mr Healion on 3 April 2023. Mr Healion was overseas at the time.
The tenancy agreement was amended, at the tenants’ request, to start as from 21 April 2023.
Included in the tenancy agreement is additional term 15 (on page 5) which states that the agreement is: ... entirely conditional on the Tenant paying the sum of $3,000.00 (being rent in advance and bond) and this amount must be paid by the Tenant by 1pm on the 14/4/2023. Should the Tenant not pay the total sum by the appointed time then this agreement shall be deemed to have never become unconditional. Any portion of the sum paid (if any) shall be refunded and neither party shall have any claim against one another.
The tenancy agreement specified that the bond was $2,000.00 and rent in advance was $1,000.00.
These amounts were paid in two separate transactions on 13 April 2023.
Ms Shead obtained the keys to the premises on 21 April 2023. She raised a concern with the property manager about a “weed” smell in the towel cupboard and a hole in the floor of one room.
Mr Healion returned from overseas on 27 April 2023 and viewed the premises. He was not happy with a range of things (cleanliness, no power to the shed, some outdoor maintenance issues). He considered the house not ready to be occupied.
A planned meeting between the tenants and the property manager could not go ahead on 30 April 2023.
On 1 May 2023, the tenants gave written email notice to end the tenancy which was accepted by the landlord.
Mr Healion has not signed the tenancy agreement.

Is there a binding tenancy contract?

A tenancy is a legal contract.
For a binding contract to be formed there must be an agreement between the parties made up of an offer, a clear acceptance, and sufficient certainty as to the key terms of the agreement. For a contract to be binding there must also be something of value provided by each side (this is called “consideration”). From tenants it is usually rent or bond, and from landlords it is the promise to provide the premises on the tenancy start date.
The tenancy agreement named both Ms Shead and Mr Healion as joint tenants as the landlord’s offer to them to rent the premises was based on their joint application. Only Ms Shead signed the tenancy agreement as Mr Healion was away overseas at the time however I am satisfied that the intention was for a joint tenancy.
The important terms were recorded in the tenancy agreement.
On 13 April 2023, Ms Shead paid the advance rent of $1,000.00 and Mr Healion paid the bond of $2,000.00 as required by additional term 15.
Mr Healion said in the hearing that he told the property manager in a phone call that the bond money was paid “in good faith” and that he would have to view the property when he returned to New Zealand. However, the property manager said that she does not recall this being said, and that the landlord would not have agreed to this as it would mean turning down other prospective tenants who were ready to enter into the tenancy agreement.
I prefer the property manager’s evidence on this. My decision is that the contract became unconditional, or binding, when the bond and advance rent were paid. The fact that each tenant paid part of the money adds weight to the conclusion that they are joint tenants.
I am satisfied that there is a binding tenancy contract.

Are the tenants liable to pay rent for the 28-day notice period?

A periodic tenancy (not for a fixed term) can be ended by a tenant giving the landlord at least 28 days’ notice in writing. This is what the tenants did.
The tenants have now applied for a refund of the advance rent that they paid and say that they should not be liable to pay rent for the 28-day notice period. Their view is that the premises were not in a suitable state to be rented so they should be able to cancel the contract with no liability for rent.
Landlords have certain legal obligations at the beginning of a tenancy. These include to: a. Provide the premises in a reasonable state of cleanliness, 1 b. Provide the premises in a reasonable state of repair taking into account their age and character, 2 c. Take all reasonable steps to make sure there is nothing legally stopping the premises being lived in (eg; it has all required building and resource consents and is safe and sanitary), 3 d. Provide vacant possession on the date the tenancy starts which means that there is no one else living there and the premises are empty of anyone else’s belongings (including the landlord’s). 4
A tenant may be entitled to cancel a tenancy contract without liability for the usual notice period if an essential part of the contract is breached, or the effect of the breach is substantial. 5
The tenants did raise concerns about cleanliness and some maintenance issues from the start of the tenancy. However, after consideration of all the evidence, my conclusion is that the issues raised are not serious enough to allow the contract to be cancelled without liability for the notice period. My reasons are:- a. The landlord offered to arrange a drug test of the premises after Ms Shead said she thought there was a “weed” smell in the towel cupboard. Ms Shead arranged this herself and the results were negative for methamphetamine and the tester advised that marijuana cannot be tested for. There is no evidence of any harm from a lingering marijuana smell, even if it was present. I viewed a video of the inside of this cupboard during the hearing and did not see anything indicative of drug use. b. The landlord fixed the hole in the floor identified by Ms Shead so this was remedied promptly. c. There are no photos to show that the premises were not reasonably clean. d. There is no evidence that the tenants specified that there must be power to the outdoor sheds as an essential term of the agreement. e. Mr Healion said that there was an open inspection hole in the guttering which overflowed when it rained but there were no photos to allow me to 1 Section 45(1)(a) Residential Tenancies Act 1986 (RTA) 2 Section 45(1)(b) RTA 3 Section 36 RTA expresses this as there being “no legal impediment to the occupation of the premises for residential purposes”. 4 Section 37 RTA. 5 See section 37 Contracts & Commercial Law Act 2017. understand how serious this was, and the property manager did not know what he was referring to. f. The property manager volunteered information saying that the landlord had chosen to use the farm water supply for the premises as this was of better quality than that from the roof water tank situated at the house. The tenants did not evidence any problem with the water supply. g. The other maintenance issues raised by Mr Healion are not significant and relate only to the outside buildings, not the house, so cannot be said to be essential. h. The tenants did not say at the time of giving notice that they were cancelling the contract and expected to have all rent refunded. They said that they were giving the usual 28-days’ notice.
My decision is that the tenants are liable for rent for the notice period which is up to 30 May 2023 (the notice period starts from 3 May 2023 because of the rules about email notices). 6 The property manager confirmed that the next tenancy did not commence until after that date.
The rent ledger shows that the amount owing up to 30 May 2023 is $1,857.14. I award this amount.

Are the tenants required to pay for the lawnmowing during the notice period?

A tenant is usually required to leave the premises and the lawns reasonably tidy at the end of the tenancy which is at the end of the notice period; s40(1)(e) RTA.
However, in this case, I do not find this to be fair. The tenants had not moved into the premises, the landlord did not want them back at the property, they had handed back the keys, and they were not told that they would be liable for lawn mowing. This claim is dismissed.

Is the landlord required to pay for the drug test arranged by the tenants?

Ms Shead arranged and paid for a methamphetamine test at the premises which cost $360.53 (receipt provided).
A landlord is not legally required to test residential premises for methamphetamine or any other contaminant. In this case, the landlord chose not to do so. 6 The tenants’ email notice was given after 5pm on 1 May 2023. This means the notice is deemed received on the next working day which is on 2 May 2023; s136(9) RTA. The notice period starts on the first day after that; s136A RTA.
Ms Shead chose to test the premises. She did not ask the landlord to pay for this prior to doing so and no evidence was provided to show a reasonable cause for doing so (Ms Shead showed a video which she said showed a broken glass pipe in the towel cupboard, but I could not see anything resembling that).
I dismiss this claim by the tenants. Filing fees and suppression of names
The landlord has been substantially successful in the application so is entitled to be awarded the filing fee and to suppression of its name.
The bond is refunded in accordance with the orders made.

Tenancy Tribunal case 4568057 — Tenancy dispute

At a glance

Tenancy Tribunal case 4568057 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Is there a binding tenancy contract?

Are the tenants liable to pay rent for the 28-day notice period?

Are the tenants required to pay for the lawnmowing during the notice period?

Is the landlord required to pay for the drug test arranged by the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is there a binding tenancy contract?

Are the tenants liable to pay rent for the 28-day notice period?

Are the tenants required to pay for the lawnmowing during the notice period?

Is the landlord required to pay for the drug test arranged by the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions