Published tribunal order
Tenancy Tribunal case 4583716 — Tenancy dispute at 651A North Road, Clevedon, RD 2, Papakura 2582
Decided 22 Sept 2023 · Published 22 Sept 2023 · Application 4583716
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
- [The landlord/s] must pay [The tenant/s] $2,890.44 immediately as set out in the table below
- The term of the fixed-term tenancy of [The tenant/s] at 651A North Road, Clevedon, RD 2, Papakura 2582 is reduced and ended on the 21 May 2023.
- The Bond centre is to release the bond of $3400.00 to [Tenant] immediately.
Reasons
- Both parties attended the hearing. [The property manager], the property manager attended on behalf of the landlord.
- The property is a 5-bedroom rural property in [City]. It is part of a working farm. The landlord lives in another house which neighbours the property and there is another home, which is also tenanted within the farm.
- The tenant signed a fixed term tenancy agreement with the tenancy commencing on the 24 February 2023 and ending on the 2 March 2024. 1
- The tenancy agreement records the maximum number of occupants for the house and property as 3. The tenant told me that she negotiated to increase this from 2 to 3 in the agreement.
- The tenant’s previous rental property in [redacted] was flooded in November last year. As a result, she had to move out. She moved to [Country] for a while to live with family. She wanted to return to New Zealand and set up a home for her and her unborn daughter. When she saw this property advertised online, she said it ticked all of the boxes as a self-sufficient country lifestyle for her daughter to grow up. She applied for the tenancy whilst in [Country] and flew back to New Zealand to meet with the landlords. The tenant tells me that she envisaged this being a long-term tenancy and as a result, when she moved in she dug gardens, replaced soil, planted seedlings and had got chickens and a rooster.
- The tenant’s partner did not live permanently at the property because of his work but at the time that the tenant moved in she expected her partner to stay with her in between his work commitments and at the time their baby was born.
- The landlord says that they had problems with the previous tenants. They were noisy and had kept many dogs at the property which would bark. The occupants of the other houses work shift work and the noise had been a problem between the households. The landlord wanted to ensure that they would not have a repeat of their previous tenant’s problems and therefore were quite discerning about who they took as their tenant.
- On the 7 March the tenant told the property manager, she would be seeking a flatmate at the property. The property manager told the tenant that the landlord would prefer not to have other people at the property. The tenant asked the landlord a further time on the 23 March. In early April the tenant put up and advertisement on Trade Me seeking either a flatmate at $250.00per week or someone to take over the wing of the house (with the landlord’s permission) for $400 per week. On the 9 April the property manger sent a text to the tenant saying that the landlord would not allow the tenant to have a flatmate at the property and to remove the Trade Me advertisement which the tenant did. 1 I not that in the landlord’s rent summary the rent was calculated from the 22 February not the 24 February.
- The tenant could not afford the property without a flatmate, she also felt very isolated and unsafe as she was pregnant. In her application to the Tribunal, she says: I would not have signed a lease on my own of a five-bedroom home if I wasn't allowed a flatmate. The tenancy agreement states I am allowed up to three adult occupants in the home, and therefore contract has been breached. As I have a baby due to be born in June, I had to vacate immediately to save money and find a smaller / cheaper rental home that I will be able to sustain after baby is born.
- On April 19 the tenant asked the landlord to release her from the tenancy on the basis that she was not allowed a flatmate and that this was causing her hardship. The tenant asked the landlord to start advertising the property. The tenant thought that if the landlord advertised and got new tenants quickly then she would leave meaning the landlords would not be without rent. The landlord did not respond to this request.
- In addition to this the tenant’s relationship with her partner had broken down. This meant the tenant no longer had the financial backstop she thought she would have when the baby was born, and that the tenant’s partner would not be returning from overseas to assist her when the baby was born. The tenant explained this to the landlord in her letter of 19 April.
- On the 6 May the tenant sent a notice to the landlord saying that as a result of the landlord not allowing a flatmate, she was suffering financial hardship and that she needed to move out. She said that she would be moving on the 21 May 2023.
- The landlord told the tenant that they would agree to the tenant having a flatmate on the 11 May, but the tenant said that by this stage it was too late, she was 35 weeks pregnant and did not have time to advertise and vet potential flatmates. The tenant moved out on the 21 May. The tenant moved to a friend’s cabin and put her belongings in storage. She describes this as very stressful and says that the landlord’s decision to not permit her to have a flatmate has been crippling and depleted her of her financial resources.
- The tenant applied to the Tribunal on the 23 May 2023 seeking confirmation that she was allowed to terminate the tenancy. Her application is made under s56(D) but that clause only relates to terminations that as a result of domestic violence (because it refers to s 56B). That is not what occurred here. The section that applies to the tenant’s claim is a reduction of fixed term tenancy s 66 and I will consider the tenant’s application pursuant to that section.
- The tenant also seeks compensation for the landlord’s refusal to allow her a flatmate which she says was a breach of her right to have a maximum of 3 persons at the property.
- The landlord is seeking rent arrears from the 23 May to 21 June 2023. The property was re- tenanted on the 22 June.
- The landlord is also seeking compensation for removal of the tenant’s fridge, washing machine and honey. The reduction of the fixed term tenancy.
- The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986. Was the landlord’s refusal to allow the tenant a flatmate an unforeseen circumstances?
- Unforeseen means something unexpected without warning.
- The tenancy agreement states that the landlord allows 3 persons to live in the property. The tenant was entitled to have a flatmate in the property without having to first seek the permission of the landlord. As the tenant was not parting with possession 2 (because she was continuing to live at the property) then the tenant was not seeking to assign her tenancy, but to merely have another person living with her. The tenant would be responsible for any acts done by her flatmate, including damaging the premises. 3 The tenant says that she would have been discerning about who her flatmate was, she was about to have her first child, she too did not want someone who was noisy or problematic.
- The tenant, understanding the landlord’s reluctance to have someone living in the property whom they had not ‘vetted’ had offered in march to allow the landlord to meet with the potential flatmate. However, the landlord refused to allow the tenant to have any flatmate until after she had given notice of her intention to leave. A couple of days after the tenant had left the tenant asked if she could move back with her sister as a flatmate, but the landlord did not respond to this text.
- When a landlord grants the tenant a tenancy, they are giving exclusive possession of the property in exchange for rent. Provided that the tenant is not breaching any of the provisions in the RTA then the tenant is entitled to quiet enjoyment or to use the property in its usual way without interference from the landlord. 2 I accept that had the tenant rented the whole wing without the landlord’s permission that she may have been assigning the tenancy (as the wing may be regarded as a separate premise) but she did not do that, and the advertisement made it clear that the landlord’s permission would need to be obtained. 3 See section 41 RTA
- S40(3) of the RTA provides that when the tenancy agreement stipulates a maximum number of occupants then the tenant shall not have more than that number ordinarily living at the property.
- The tenancy agreement allowed a maximum of 3 persons. The tenant lived alone. Her partner did not ordinarily live at the property. She was in fact entitled to have another two adult occupants ordinarily living at the property with her. I am satisfied that the tenant did not have to seek permission from the landlord and the landlord had no legal basis to refuse to allow the tenant to have a flatmate. The house was big enough to accommodate another flatmate, the tenancy agreement permitted 3 persons to live at the property and the tenant had not misrepresented her situation to the landlord. The landlord’s submission that the tenant had not told them that she would be seeking a flatmate holds little weight when the landlord admitted it never asked the tenant if she proposed having a flatmate or not before accepting her as a tenant.
- Having heard from both parties I am satisfied that the landlord’s refusal to allow the tenant to have a flatmate was an unforeseen circumstance because: a) It was reasonable for the tenant to expect that she could have a flatmate because she could have 3 adults living in the property as that amount was stipulated in the tenancy agreement and the house was a 5-bedroom property. b) The tenant gave evidence that she thought she would be able to take on the flatmate. c) There was no legal basis for the landlords to refuse the tenant taking on a flatmate. d) The breakdown in the tenant’s relationship in March and April meant that having a flatmate became a necessity to pay the rent. The tenant could not have foreseen the breakdown in the relationship.
Did it cause the tenant severe hardship?
- The hardship suffered by the tenant must be severe, that is more than ordinary hardship 4 .
- The tenant gave evidence that without a flatmate, she would struggle to pay the rent and that she would have been unsafe. She was in her third trimester of pregnancy living alone in isolated rural community. I accept the tenant’s evidence that the landlord’s refusal to allow the tenant to have a flatmate caused her extreme stress and financial hardship. The tenant said that she simply could not delay moving out any longer when she gave notice on the 6 May 2023 . She had depleted all of her resources that she had set aside for the birth of her child, and she did not know how much longer she could physically move her items, nor when she would have her baby. I am satisfied that the tenant suffered severe hardship. 4 Bickerton v Lott DC WellingtonTT756/00, 21 December 2000. Was the tenant’s hardship more than the landlord’s hardship?
- The landlord says that their hardship was that they had to find new tenants and were left without rent from 23 May to 21 June. I accept that the landlord’s had their own personal challenges having suffered a family bereavement, but I consider the hardship in not having rent for the period after the tenant moved out to the 21 June 2023 when new tenants were obtained to be entirely of their own making, because if they had allowed the tenant a flatmate, when she had first asked, she would still be living there.
- I find that the tenant’s hardship would be greater than the landlord’s hardship.
What day should the tenancy terminate?
- I am satisfied that the tenancy should terminate on the 21 May 2023, being the date that the tenant moved out. I say this because: a) The tenant told the landlord on the 19 April that she could not afford the property and asked to be released on the basis that they could advertise the property. The landlords never responded to this correspondence. b) The tenant made it clear when she would vacate, and her reasons why in her email of 6 May. c) This is the day that the tenant left. Is the landlord entitled to any compensation? If so, what is the amount.
- Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.
- I do not consider that the landlord is entitled to any compensation. As I mentioned above the first breach was the landlord’s refusal to allow the tenant to have a flatmate. when the tenant made it clear that she could not continue with the tenancy and wanted to negotiate an exit that would suit all parties the landlord did not respond. There was no evidence that the landlord had tried to advertise the property from 19 April or took any steps to mitigate their loss despite the tenant making it plain that she could not afford to stay on the tenancy if the landlord would not allow her a flatmate.
- I further think it inequitable for the landlord to seek compensation of rent when the tenant asked if she could move back in with her sister soon after leaving and the landlord did not respond. The tenant’s claim for compensation.
- The tenant seeks compensation for the landlord’s breach by not allowing the tenant to have a flatmate.
- Section 38 of the RTA provides: The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
- I consider that the landlord refusal to allow the tenant to have a flatmate breached the tenants right to reasonable peace and comfort and the right to use the property in a way that she had contracted to do so. The tenancy agreement entitled the tenant to have 3 people living at the property, and she was entitled to have a flatmate without having to seek the landlord’s permission. The landlord’s refusal meant that the tenant was worried, felt unsafe, had significant financial implications and impacted her comfort.
- The tenant claims $6,682.00 for this breach. I consider it appropriate to award $2870.00 to the tenant. In coming to this amount, I have considered the costs incurred by the tenant in storing her goods, the cost of paying the full rent when if she had a flatmate she would have paid less, the costs of having to move, the costs for soil and plants that she invested in without being able to see those projects to fruition. I have also considered the significant emotional toll on the tenant of having uncertainty and stress whilst being pregnant with her daughter. The tenant’s goods.
- The tenant has left the washing machine and fridge at the premises. She thought that the new tenants might like them. The tenant has an obligation to remove her goods. She has confirmed at the hearing that she will remove the goods at a time agreed upon with the landlord. The landlord must allow the tenant time to pick up goods. If the tenant does not pick up her goods by the 10 September 2023, then the landlord may dispose of the costs and seek the costs of the removal and dumping from the tenant. Filing fee and name suppression.
- As the tenant has been successful, I award her the filing fee and grant her name suppression.
- I also consider it appropriate to suppress the landlord’s details. There is personal information in the decision that should not be published, and whilst I consider that there is public interest in knowing how the law is applied by the Tribunal in these circumstances, I do not consider that there is public interest in knowing the names or identities of the parties.