What was Tenancy Tribunal case 4571190 about?

The tribunal order states: The tenants’ applications are dismissed.

How much money was awarded in case 4571190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571190?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4571190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9356231-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4571190 about?

The tribunal order states: The tenants’ applications are dismissed.

How much money was awarded in case 4571190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4571190?

The primary dispute was Rent arrears. Related themes: Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4571190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9356231-Tribunal_Order_Redacted.pdf.

27 Tanera Crescent, Brooklyn, Wellington 6021 Tenancy Tribunal Case 4571190 — Rent arrears

Tenantcheck Insights

Reasons

[The applicant/s] (the tenants) have applied to the Tribunal to be released from their fixed term tenancy which is contracted to continue until February 2024. Their original application filed in May cited Healthy Homes issues as the reason for their request.

The matter was first heard on 27 June before Adjudicator Henwood who directed that the tenants file an amended application setting out the grounds relied on by reference to sections of the Residential Tenancies Act 1986 (RTA) and accompanied by any supporting documentation given the lack of clarity and information in the application. He made this direction as an alternative to dismissing or striking out the claim for its deficiencies at that time.

When the matter next came before him on 17 July, the application was still incomplete and had not been served on the landlord with sufficient time for him to consider a response. Accordingly, he again adjourned it for a final time.

The application then came before me, along with a cross application from the landlord for rent arrears 1 . The tenants cited numerous alleged breaches of the RTA by Mr Walmsley and filed corroborating evidence for them all. They were clear with me however that the only outcome they were seeking from the Tribunal in response to these breaches was to be removed from the tenancy.

As advised at the hearing, I cannot approve their application to end their fixed term tenancy. The reasoning for this finding is discussed in detail below and was explained by me at the hearing. The application to reduce their fixed term tenancy is therefore dismissed.

This leaves the issue of the alleged breaches of the RTA by Mr Walmsley which the tenants raised, being a failure to provide the required documentation, a failure to provide the premise in a reasonably clean and tidy condition, and a failure to attend to maintenance. The difficulty with these claims is that what the tenants seek in redress, being the ending of their tenancy, is not actually available to them under the RTA. The Tribunal can only make monetary orders or work orders upon findings of such breaches.

Accordingly, on reflection of the tenants claims I consider I have no choice but to dismiss them. I have come to this decision for the following reasons: a. The tenants’ original application specifically did not make any claim for compensation and/or exemplary damages for the alleged breaches despite there being clear boxes for them to fill out to that end. In short, there was no application for monetary orders. b. Adjudicator Henwood directed the tenants to specify their claims and what they were seeking on 27 June and yet they did not reference any monetary claim in the documents they subsequently filed. c. The tenants had taken advice from the Community Law Centre who they agree did advise them they could apply for compensation and/or exemplary damages. They were therefore aware of their ability to make such an application, and yet they did not. d. At the hearing they were clear that all they wanted was to be taken off the tenancy agreement. 1 The cross application has been separated out and is to be dealt with separately given the other parties involved with that application, that are not involved with this one.

Therefore, as the Tribunal cannot end a tenancy as redress for the alleged breaches of the RTA raised by the tenants, any finding on those claims would be theoretical at best.

I appreciate that at the hearing we did not discuss all the tenants’ claims in depth, but we certainly did the majority. The tenants’ submissions and landlord’s response are also filed clearly in writing. I consider that to come back in further hearing to hear oral evidence on the remaining few claims not specifically discussed at the first hearing would be a waste of the parties and Tribunal’s time given, as above, the Tribunal cannot award the tenants’ what they seek. I consider this finding in line with my jurisdiction which is to ensure the fair and expeditious resolution of disputes. 2

Why can the fixed term tenancy not be reduced?

A fixed term tenancy is a legally binding contract, set for a period of time and not intended to be broken. If it is to be broken, that must be by agreement or by Tribunal order. Here there is agreement for the tenants to replace themselves on the tenancy, but not to end it completely.

The Tribunal may reduce a fixed term tenancy where there has been an unforeseen change in the applicant’s circumstances and, there would be severe hardship to the applicant if the term is not reduced and, the applicant’s hardship would be greater than the hardship to the other party if the term is reduced; see section 66(1) RTA

Section 66 of the RTA is the relevant section and sets a high threshold for reducing fixed term tenancies. It provides a four-part test to be met before the term is reduced. The Tribunal must be satisfied that there is: i. A change in the applicant’s circumstances; ii. The change is unforeseen; iii. That the applicant would suffer severe hardship if the term is not reduced; and that iv. The severe hardship which the applicant would suffer would be greater than the hardship caused to the other party if the term of the tenancy were not reduced.

The jurisdiction in s66 RTA is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations 2 S85 RTA under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain.

The first issue to consider is whether there has been an unforeseen change in the tenant’s circumstances.

The term “unforeseen” is a legal term defined by reference to the reverse (“foreseeability”) in cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts, there is a body of case law which has established that: (a) foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; (b) an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; (c) the term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”.

The tenants have promoted the reasoning of the inherent damp in the property as that is why they say they all vacated in February. However, they filed this application in May when they were having difficulty filling all their rooms with replacement tenants. Therefore, the actual reasoning for filing the application, which they accept, is that they have not been able to find replacement tenants for their rooms and cannot afford the double rent (for this property and their new properties). It was clearly a foreseeable consequence when they moved out without having replacement tenants, that they might not be able to find any. Accordingly, I cannot be satisfied that there was an unforeseen change in the tenants’ circumstances and as such, s66 of the RTA cannot apply here.

As an alternative, the tenants have argued that they have not been able to find replacements because of the state of the premise. However, I do not find that the evidence has established this. There is no feedback from prospective tenants, other than one who said the property was ‘deteriorated’, that the state of the premise was reasoning for not taking the tenancy. There is no evidence of the number of people they have shown through. Further, evidence has not been provided from the current two people residing there that they are having similar issues to these tenants. Even if this was the case, it would not be unforeseeable that if a tenant is having problems with a room that a prospective tenant might not take it for that same reason.

Even if I am wrong in my dismissal of section 66 of the RTA applying, I cannot end a fixed term tenancy for some of the tenants, where others wish the opposite. This is because, where the fixed term tenancy has a number of tenants, they are all jointly and severally liable for the tenancy which means that they must all be of the same mind in wishing to terminate the tenancy early. Here there are eight tenants recorded on the tenancy agreement and this application is only made by five of them.

This issue has been extensively traversed in another Tribunal Decision, Derbyshire & Others v Mark & Maggies Property Company Limited, TT 13/01477/WN. The Adjudicator there concluded that a term can be implied into a tenancy agreement that the landlord covenants with all the tenants jointly and severally. This means that some promises can be enforced by the tenants jointly and some can be enforced severally (by one tenant alone). However, the Adjudicator held that not all remedies that would be available to tenants if acting jointly, will necessarily be available to a co-tenant acting alone, and termination of a fixed term tenancy is an obvious example.

There would be serious implications for the other tenants if one tenant under a fixed term tenancy was released from the tenancy. In particular, the tenancy remains in place for the other tenants, and this includes the obligations under the tenancy agreement such as the payment of rent. The obligation to pay rent is joint and several, not several (i.e., each tenant is liable for all the rent, not just a proportion) and, consequently, the obligation to pay the departing tenants’ proportion of rent would fall back on the other tenants. It is therefore nonsensical that an order in favour of one tenant ending the tenancy when the others object, is just.

Therefore, for the reasons set out above and discussed at the hearing, these tenants cannot (alone) apply to terminate the fixed-term tenancy. Accordingly, the application must be dismissed.

Should suppression be granted?

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 and allows discretion if in the public interest. Here the tenants were not successful however I agree with their submission that this situation has arisen out of ignorance and misunderstanding of the law. They have attempted to do the right thing in this process, and it has unfortunately not worked out for them. They are all young and new to the tenanting environment and should not be prejudiced by their process mistakes at this stage. Accordingly, I direct that the tenants’ identifying details be redacted from the published order.

The landlord has also sought suppression. However, I decline his application because whilst the claim was dismissed, it was not because he was successful in defending it. Rather the dismissal was due to a technical procedural issue rather than a successful defence.

Reasons

Therefore, as the Tribunal cannot end a tenancy as redress for the alleged breaches of the RTA raised by the tenants, any finding on those claims would be theoretical at best.

Why can the fixed term tenancy not be reduced?

The first issue to consider is whether there has been an unforeseen change in the tenant’s circumstances.

Therefore, for the reasons set out above and discussed at the hearing, these tenants cannot (alone) apply to terminate the fixed-term tenancy. Accordingly, the application must be dismissed.

Should suppression be granted?

Tenancy Tribunal case 4571190 — Rent arrears at 27 Tanera Crescent, Brooklyn, Wellington 6021

At a glance

Tenancy Tribunal case 4571190 — Rent arrears at 27 Tanera Crescent, Brooklyn, Wellington 6021

At a glance

Claims & awards

Order

Reasons

Why can the fixed term tenancy not be reduced?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Why can the fixed term tenancy not be reduced?

Should suppression be granted?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions