Published tribunal order
Tenancy Tribunal case 4640289 — Rent arrears at 67 Minden Road, Minden, RD 6, Tauranga 3176
Decided 23 Aug 2023 · Published 23 Aug 2023 · Application 4640289
Landlord favoured
- Rent arrears
- 14-day notice
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Andrew James Watson owes Commercial Property Solutions Limited T/A Colliers International As Agent For The NZ Transport Agency $320.44 (“the debt”) being balance rent owed up to 24 August 2023 of $300 and the filing fee on this application of $20.44.
- Andrew James Watson must pay rent and the debt as follows: a. A payment of $320.44 for the debt to be made on or before Friday 25 August 2023; b. A payment of $600.00 on or before Friday 25 August 2023 for current rent covering the period from 25 August 2023 to 31 August 2023.
- Payments will be allocated in the following order: rent, rent arrears, and the filing fee.
- If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at 67 Minden Road, Minden, RD 6, Tauranga 3176 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
- If the tenant fails to pay the filing fee within 2 working days of the due date, the filing fee will be payable immediately.
Reasons
- Both parties attended the hearing on 22 August 2023 by telephone.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The tenant wants to repay the debt to avoid immediate termination.
Should a termination order be made?
- Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act 1986 (RTA).
- The Tribunal may also refuse to make an order under section 55(1) RTA if, but only if, it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies. See section 55(2) RTA.
- The landlord provided rent records which show rent arrears owed as at 17 August 2023 of $4,200. In addition, the rent due for this current week (18-24 August) of $600 was due for payment on 18 August 2023. This makes a total of $4,800 for the period ending 24 August 2023. The records also show that rent was more than 21 days in arrears when the landlord made this application to the Tribunal. This means that the landlord is entitled to a termination order regardless of whether the tenant pays the arrears, subject to the Tribunal exercising its discretion not to terminate under ss 55(1A) or (2).
- At the hearing, the tenant advised that the arrears were paid on his behalf by MSD last week. I stood the hearing down to enable the landlord to check the account. They subsequently advised that no payment had been received.
- I gave the tenant a final opportunity to prove payment of the arrears by 4pm today, 23 August 2023. In that regard, the MSD case manager dealing with the matter emailed the Tribunal confirming that she personally interviewed the tenant last Wednesday 16/08/2023 and received his request for assistance with rent arrears. She further states that due to unforeseen circumstances she was not able to action the tenant’s request until today, 23 August 2023. She provided confirmation of payments made via Work and Income for $4,500.00 (split into 2 payments of $2,400.00 & $2,100.00).
- I am satisfied that the bulk of the arrears has been paid, but there is an outstanding balance of $300, and a further rent payment will also be due this Friday 25 August 2023.
- Had the tenant completely paid off the arrears I would have declined to terminate the tenancy pursuant to the grounds in s55(2). However, because the arrears have not been paid in full, I have made a conditional termination order under s55(1A).
- The reasons for making a conditional termination are because I am satisfied the tenant will pay the debt within the period specified in the order and is unlikely to commit any further relevant breach. He was candid at the hearing about past financial difficulties. He confirms that he is no longer contracting to other companies and has now set up his own building company business so that he is in better control of his income. He claims that his business is doing well enough that he is confident of being able to service the rent consistently.
- I acknowledge the landlord’s concerns that there has been a pattern of the tenant falling into arrears. However, I consider that the tenant’s change in work circumstances might improve the situation and I am willing to give him a final opportunity, given his confidence. Should the tenant fall into arrears again, a termination order would likely be made.
- The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order may be enforced for 90 days from the first breach. See section 64(4)(b) RTA.