What was Tenancy Tribunal case 4624871 about?

The tribunal order states: The Tribunal declares that the tenancy ended on 08 August 2023.

How much money was awarded in case 4624871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4624871?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4624871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9880873-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4624871 about?

The tribunal order states: The Tribunal declares that the tenancy ended on 08 August 2023.

How much money was awarded in case 4624871?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4624871?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4624871?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9880873-Tribunal_Order_Redacted.pdf.

18 De Vere Crescent, Chartwell, Hamilton 3210 Tenancy Tribunal Case 4624871 — State of repair

Order

The Tribunal declares that the tenancy ended on 08 August 2023.
The landlord must refund the tenant the bond of $1,000.00 immediately.
The claim that the landlord required more than 4 weeks rent in advance is proved, no compensation is awarded.
All other claims are dismissed.

Reasons

The tenant appeared and was assisted by a Mandarin interpreter. The landlord appeared and was assisted by a Cantonese interpreter. Documents in both languages have been produced along with translations. Both parties have provided written submissions and photographs which I have considered. During the hearing, the interpreter for the landlord advised that they were having difficulty understanding the landlord. At the conclusion of the hearing, I was however satisfied that both parties had the opportunity to present their respective cases, and that there was sufficient evidence to reach a decision.
The tenant’s application was filed on 06 July 2023 and listed for a face-to-face hearing on 28 July 2023. On 28 July 2023, the matter was adjourned so that interpreters could be provided to assist both parties. The matter was then scheduled for hearing on 22 September 2023. This date was vacated, and the matter set down for 24 October 2023. On that date, the tenant appeared but the landlord did not. It appears that at the conclusion of the hearing but before the Tribunal delivered a decision, the landlord arrived late. The landlord sought a rehearing, which was granted, and the matter was set down before another Adjudicator on 19 January 2024. Claims
The tenant claims that due to an unforeseen change in their circumstances that the fixed term of the tenancy should be reduced. The tenant is seeking a rent refund of $314.00, and the full refund of their bond, $1,000.00.
The tenant also claims that the landlord failed to provide a tenancy agreement in writing, and during the tenancy sought more than two weeks rent in advance.
Apart from the refund of the bond and rent paid the tenant does not seek any monetary compensation or exemplary damages.
The onus of proving these claims rests with the tenant. The standard of proof is on the balance of probabilities. The tenant must establish more likely than not that the landlord has breached the tenancy agreement or provisions of the Residential Tenancies Act 1986 (The “Act”). Facts
The property consists of two bedrooms, bathroom, and a living room. The kitchen and laundry facilities were to be shared with other occupants. A floor plan of the property has been produced. The property is part of a house which may also be used by the landlord. In this case the landlord was not also occupying the property at the material time, and the issue of jurisdiction has not been raised.
On 30 June 2023, the tenant and their partner and the landlord conducted an inspection of the property. At the conclusion of the inspection the landlord hand wrote the terms of the agreement in a notebook, which was then signed and dated by both parties.
The landlord states that the tenancy agreement was in fact more comprehensive than the one produced by the tenant in their application, which they state is a summary of the full agreement. The landlord states that both the comprehensive agreement and summary agreement were contained in the same notebook and provided to the tenant at the same time. Both documents have been provided along with agreed English translations for each.
The tenant states that the first time they became aware of the more comprehensive document was when it was provided in disclosure on or about 31 October 2023. The more comprehensive document is undated. The notebook has not been produced. The landlord is seeking an adjournment to produce it. I am not prepared to adjourn the hearing. On 31 October 2023, the Tribunal made clear evidence directions, which the landlord has failed to comply with. The landlord has stated that they have not done so for health reasons. I am not satisfied that the reasons advanced warrant any further delay.
Of the two documents the summary appears to be more consistent with having been prepared at the material time. On the evidence, I am not satisfied that the more comprehensive document was provided to the tenant before 31 October 2023. In any event the shorter document contains the essential terms of the agreement such as the rent payable and the term of the tenancy. The agreement concerned states that the rent is “$550.00 per week per month”, that the tenancy is for one year commencing 01 July 2023, and that the bond is $1,000.00.
The tenant states that the intention was that themselves and their partner would be joined by two other occupants, who would occupy the second bedroom and pay their share of the rent directly to the landlord. On that basis, the tenant states they paid the landlord $275.00, being their half of the first week’s rent. A receipt has been produced for $275.00, and the bond of $1,000.00.
The tenant states that later that day they messaged the landlord stating that the other occupants would not be joining and that they would continue the tenancy at the rate of $275.00 per week, or if not acceptable end the tenancy and leave. The tenant states that the landlord accepted this offer.
The landlord denies that they agreed to reduce the rent from $550.00, and state that they took the $275.00, as a partial payment, and on the basis that the shortfall would be made up.
The tenant refers to the request for the rent in advance of 02 July 2023 in which the landlord asked for “$1,100.00 for 4 weeks in advance from 08 July 2023 to 08 August 2023”, pointing out that the amount requested is equivalent to four weeks rent at $275.00 per week.
The tenant states that during the inspection on 30 June 2023, they noted that the wardrobe doors in one of the bedrooms had come off their runners, and that the shared washing machine was not operating. The tenant states that during the inspection the landlord gave an undertaking to address the matters.
The photographs produced by the tenant, taken on 06 July 2023, show the wardrobe doors apparently off their runners, and the washing machine located on a porch outside. It does not appear to be plumbed in.
On 01 July 2023, the tenant states that they also discovered that one of the wall mounted lights did not work, that the light bulb to one of the lights in one of the bedrooms was missing, and that 3 power sockets were not working. The tenant has produced a video showing these taken on 06 July 2023.
The landlord states that they offered to provide the tenant with a curtain as a substitute to the wardrobe doors which they accepted. The tenant stated that they had subsequently attempted to install the curtain provided on 10 July 2023 but had been unsuccessful.
The landlord stated that soon after being advised of the missing light bulbs they made available replacements which they had left on a shelf in a shared area. The tenant denies this was the case.
The tenant states the wall light and power sockets were repaired on or about 08 July 2023, and the washing machine was fixed on 10 July 2023. The landlord denies that the washing machine was not functioning at the commencement of the tenancy and stated that the photograph produced had been “staged”.
The tenant states that they asked the landlord to provide evidence of the tenancy and a bond lodgement form. The tenant states that paying the rent in advance of $1,100.00 on 03 July 2023 had depleted their available cash reserves and that they needed to open a bank account to transfer funds from overseas. The tenant stated that they attempted to do so but were advised that they needed proof of address, which in this case involved a tenancy agreement, and bond lodgement form. The tenant states that they asked the landlord but that the request was refused. The tenant states that without this they were unable to open a bank account.
The tenant has sought to amend the claim orally to include a claim that the landlord has failed to lodge the bond. In the circumstances I am not prepared to amend the claim before me.
On 24 July 2023, the tenant sent a message to the landlord stating that they were vacating the property on 27 July 2023. The message has not been produced. The landlord accepts however, that they received the message but did not reply, and did not accept that they agreed to end the fixed term. The tenant states that having paid up to 08 August 2023 they should be refunded the rent from 27 July 2023 to 08 August 2023. Law
A fixed term tenancy cannot be terminated by notice. Section 50(d) of the Act provides that a fixed term tenancy may be ended where the tenant surrenders the tenancy or delivers up vacant possession to the landlord with the landlord’s written consent. The Tribunal may also terminate a fixed term.
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The Tribunal has held that it cannot reduce the term of a fixed-term tenancy on the application of one of several co-tenants (Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.
The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.
Section 13 of the Act provides that all residential tenancy agreements must be in writing and signed by both parties with a copy provided to the tenant.
Section 13A of the Act states that the agreement must contain particular information which include the landlord’s details, address for service, amount of the bond, rent payable, frequency of rent payments. The agreement must also provide details as to any insurance held and compliance with the insulation and healthy homes standards.
Section 23 of the Act provides that a landlord must not request the payment of more than two weeks rent in advance.
Section 22B of the Act provides that if the tenant seeks an order for refund of the bond in whole or in part, the landlord must, if opposing release of the bond, file a counterclaim.
Section 49 of the Act states where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
Section 85 of the Act states: Section 85 Manner in which jurisdiction is to be exercised (1) Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. (2) The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Issues
The landlord argues that there are insufficient grounds to reduce the fixed term, denies that they failed to respond to maintenance issues, that they failed to provide a tenancy agreement in writing, and that they asked for more than two weeks rent in advance.
The landlord states that they should have lodged a counterclaim for leaving the property unclean and unpaid power and other utilities, but have not, and that the tenant should be liable for rent until the end of the fixed term.
The tenant submits that the fixed term should be reduced, and the tenancy ended on 27 July 2023 because: a. The issues concerning maintenance remained outstanding for an unreasonable period, b. The landlord failed to provide a written tenancy agreement, c. The landlord sought 4 weeks rent in advance. Decision
There are insufficient grounds to reduce the fixed term. I am not satisfied that there has been an unforeseen change in the tenant’s circumstances. Most of the maintenance matters raised were remedied within a reasonable period. I am satisfied that the landlord likely left replacement bulbs for the two lights. Although the wardrobe door may not have been remedied, it was a minor defect and does not on its own, or when considered with the other matters, warrant reducing the term of the tenancy.
While the written agreement provided may not have covered all the mandatory requirements, it nevertheless contained those terms crucial to the agreement such as the name of the landlord, the address of the property, the amount of the bond, the amount and frequency of the rent, and the duration of the tenancy. It was signed by both parties. Receipts were then provided for the rent and the bond. The fact the bank may not have accepted the handwritten agreement or receipts as proof of the tenancy or payment of a bond are not an unforeseen change of circumstances.
Concerning the claim that the landlord has requested the tenant pay rent in advance of more than two weeks, this claim is proved, the landlord has explicitly requested that the tenant pay “four weeks” in advance.
The tenant advised the landlord that they intended vacating the property on 27 July 2023. Under the terms of the agreement the tenant was unable to give such notice. In doing so and then leaving the property without the written consent of the landlord, they have acted contrary to the terms of the agreement and the provisions of the Act.
It is in the interests of both parties that the matter is resolved without further delay. Almost 6 months has elapsed since the tenant vacated the property, and there has been no claim filed by the landlord.
Although they were away at the material time, and did not do so, the landlord had the right to access without notice the other rooms in the property, including the shared kitchen. The landlord had actual knowledge the property was vacant and had unimpeded access.
In my opinion the tenant should be liable for rent until 08 August 2023, thereafter the landlord had an obligation under section 49 of the Act to mitigate any potential loss by offering the property for rent to another.
In conclusion, there are no grounds to reduce the fixed term for an unforeseen change in circumstances. The Tribunal declares however that the tenancy ended on 08 August 2023. There is no basis to award the tenant any refund of the rent. The landlord has not made a counter claim against the bond. The $1,000.00 held by the landlord must be refunded to the tenant in full immediately. Costs
There is no order for reimbursement of the filing fee. Name suppression
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
While there is public interest in the facts of the case, I am not satisfied that in this case the interest necessarily extends to the identity of the parties involved. In this case I am satisfied that it is appropriate to supress the name and identifying details of both parties.

Tenancy Tribunal case 4624871 — State of repair at 18 De Vere Crescent, Chartwell, Hamilton 3210

At a glance

Tenancy Tribunal case 4624871 — State of repair at 18 De Vere Crescent, Chartwell, Hamilton 3210

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