Published tribunal order
Tenancy Tribunal case 4627169 — Rent arrears
Decided 10 Oct 2023 · Published 10 Oct 2023 · Application 4627169
- Rent arrears
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 the Tenant/Landlord name and identifying details.
- [The tenant/s] owes [The landlord/s] $13,070.44 (rent arears to 29 September 2023 of $13,050.00, and reimbursement of the $20.44 filing fee).
- The Bond Centre is to pay the bond of $3,000.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- [The tenant/s] must pay [The landlord/s] $10,050.00.
- If the tenant fails to pay the balance of $10,070.44 by Friday 29 September 2023: a. The tenancy at [Tenancy address suppressed] will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately
Reasons
- The tenancy commenced on 22 April 2023 and is for a fixed term to end on 22 April 2023.
- On 10 July 2023, the landlord filed an application seeking termination of the tenancy on two grounds. Firstly, under section 55(1)(a) of the Residential Tenancies Act 1986 (The “Act”) claiming that the tenant was at least twenty-one days in rent arrears at the time the application was made. Secondly, under section 56(1) of the Act, alleging that the tenant had failed to remedy a fourteen- day notice issued for rent arrears on 23 June 2023.
- On 31 July 2023, the matter was set down for an in person hearing at the [Town] Courthouse on Wednesday 13 September 2023. On that date all parties, including a [Language] interpreter attended. The tenant advised that their child may have broken their leg, and that they were both enroute to the hospital, and that the child was waiting in the car outside. The tenant accepted the rent arrears but expressed a desire to avoid termination.
- The tenant’s child was visibly distressed and urgently needed medical treatment. The landlord was initially reluctant to delay the hearing. It was clearly not appropriate to continue with the hearing. The Tribunal adjourned and directed that the parties attend the [Town] Courthouse to join with myself in a telephone hearing the next day, which is today, Thursday 14 September 2023 at 10am.
- Both parties have appeared at the Courthouse as instructed for the telephone hearing. [Redacted], a [Language] interpreter, has also attended to assist the landlord.
- Both parties have taken the promise to tell the truth, acknowledging that failing to do so may result in prosecution for giving false evidence.
- Section 56(2) of the Act provides that where an application is made under section 56(1), and the Tribunal is satisfied that at the time of hearing the matter could have been dealt with under section 55, the Tribunal shall determine the matter as if it had been an application made under that section.
- The landlord has produced a rent summary recording all the rent payments made to date. The summary is accepted by the tenant. I have heard from the parties and considered the rent summary. I am satisfied that the rent was at least twenty-one days in arrears at the time the application was filed on 10 July 2023. I am also satisfied that a fourteen-day breach notice to remedy rent arrears issued on 23 June 2023, was not remedied. Therefore, there is sufficient grounds to order termination of the tenancy under both section 55(1)(a) and section 56(2) of the Act.
- The tenant seeks to avoid termination. Section 55(1A) of the Act provides that the Tribunal may make a conditional termination order if it is satisfied that the tenant will pay the arrears within a specified time, and it is unlikely that the tenant will find themselves in rent arrears again.
- The tenant may also avoid termination under section 55(2), provided that the breach has been remedied, the landlord has been compensated for their loss, and it is unlikely that the tenant will fall into arrears again.
- In this case section 55(2) cannot be considered as the rent arrears have not been remedied and remain outstanding. Therefore, discussions have focused on the discretion in section 55(1A) of the Act.
- The tenant resides at the property, described as a brick and tile new build, with their [Child]. The tenant has an older son and a grandchild who regularly visit and stay at the property.
- The tenant is employed at [Redacted], earning between $700.00 and $1,400.00 per week. The tenant states that in May 2023 they suffered an injury and went on ACC, thereafter, receiving wage payments averaging $800.00 per week. The tenant states that up until April 2023, they had also been receiving a WINZ benefit of around $700.00 per week, but this ceased leaving the ACC payments as their sole income.
- The rent is $750.00 per week. On this reduced income the tenant quickly fell into rent arrears. The tenant states that their financial plight had also been exacerbated by fraudulent transactions from their account to an online gambling service. The tenant states these have been reported to the bank, which is investigating the matter, and that they hope to recover some of the lost money. Besides bank statements covering the period 22 March 2023 to 22 April 2023, which show payments of $310.00 to the service concerned, there is no other evidence as to the extent of the alleged fraud.
- The tenant states that in August 2023, they, along with the landlord attended WINZ to request for funds to be paid directly to the landlord. It does not appear that this matter has been followed up. The landlord states that they have not received any rent payments and is extremely concerned that the arrears have grown considerably.
- Looking ahead, the tenant states that they have been medically cleared by their ACC physiotherapist to return to work, and that following a meeting with their doctor, that they hope to do so next week.
- The tenant states that they have some outstanding Court fines but no other debts. The tenant states that they have funds with Kiwi Saver and have recently discovered that they are able to make an application for release of funds on hardship grounds. The landlord has produced one of the tenant’s payslips, confirming that Kiwi Saver contributions are being made.
- Having heard from the landlord it appears that they believed that the tenant was receiving ACC of around $900.00, and a weekly payment of around $700.00 from WINZ. Based on the evidence, this does not appear to be the case.
- Although it appears that the tenant will suffer hardship, there is no guarantee that the tenant’s Kiwi Saver funds will be released to the tenant. I have also expressed a concern, based on the tenant’s income and basic living costs, that the rent of $750.00 per week is unaffordable, and that a conditional order may be setting both parties up to fail.
- However, having heard from the parties, and considered all the evidence, I am satisfied by the thinnest of margins that it is appropriate to exercise the discretion in section 55(1A) of the Act, and make a conditional termination order.
- The landlord has agreed the terms of that order which are set out above. To alleviate the landlord’s financial distress, I am ordering immediate release of the bond. I have emphasised to the tenant there can be no further excuses or delays. The onus is on the tenant to honour their commitment to complete and file the application for the release of Kiwi Saver funds as soon as possible. The Tribunal has made it clear that if the balance of the rent arrears is not cleared in full by 29 September 2023, the tenancy will be terminated. Costs
- Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- Both parties seek name suppression.
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- 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.
- The landlord has been substantially successful and is granted name suppression. Considering the tenant’s personals circumstances, I am satisfied that there are grounds on which to grant them name suppression under section 95A(4) of the Act.