What was Tenancy Tribunal case 4657130 about?

The tribunal order states: An application for suppression has been made by the Landlord. The Tribunal

How much money was awarded in case 4657130?

Rent Arrears: $1,135.71 awarded to landlord

What type of tenancy dispute was case 4657130?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4657130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9839363-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4657130 about?

The tribunal order states: An application for suppression has been made by the Landlord. The Tribunal

How much money was awarded in case 4657130?

Rent Arrears: $1,135.71 awarded to landlord

What type of tenancy dispute was case 4657130?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4657130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9839363-Tribunal_Order_Redacted.pdf.

31 Haseler Crescent, Howick, Auckland 2014 Tenancy Tribunal Case 4657130 — Rent arrears

Claims and awards in Tenancy Tribunal application 4657130 — net $1,135.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,135.71	Rent arrears
Net award	$1,135.71
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,135.71

Order

An application for suppression has been made by the Landlord. The Tribunal declines that application as the Landlord has been wholly unsuccessful in her claims.
The Tribunal orders suppression of the Tenant’s name and identifying details as there are private matters discussed in this application that the Tribunal considers sensitive but that it also considers necessary to outline as part of the rationale for the decisions and orders made.
The tenant must pay Hsiang Fen Ying $1,135.71 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,120.00 ([Bond number suppressed]) immediately apportioned as follows: Hsiang Fen Ying$1,135.71 [Tenant name suppressed]$ 984.29
The tenancy is held to be periodic. 28 days’ written notice was given to the landlord by the tenant in her 28 January 2023. The tenancy is held to have ended on 25 February 2023 and rent is payable to that date.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears to 21 May 2023, refund of the full bond, and reimbursement of the filing fee following the end of the tenancy.
When I asked for the basis of the landlord’s claim for rent arrears to 21 May 2023, she confirmed this was the date Tenancy Services asked her for a date the tenancy ended after reviewing her application.
The landlord also confirmed that a new tenant had commenced tenancy of the premises on 1 April 2023. She could not explain why she was holding the tenant accountable for rent to 21 May 2023 when she had been collecting rent from 1 April 2023 from the new tenants.
The amount of rent arrears the landlord can claim is dependent upon whether the tenancy was fixed term or periodic.

Was the tenancy fixed term or periodic?

The tenancy agreement was signed by the landlord on 15 April 2022 and by the tenant on 19 April 2022. There was agreement by the parties that the tenant was initially going to move into the premises on 20 April 2022, but a new start date for the tenancy was agreed, and the tenancy agreement start date was changed to 30 April 2022. This change to the start date was initialled by both parties on or around 20 April 2022.
Much was made by the landlord of the tenancy being fixed term and the conditions of the fixed term tenancy being that the tenancy could not be terminated, except by the landlord’s written consent, until the tenant received a Refugee Status Unit (RSU, previously known as RSB) decision.
At the time the tenancy agreement was written, the tenant had purchased a ticket to go back to China at the beginning of January 2023. The landlord’s husband assisted the tenant to look at whether she may be able to qualify for asylum in New Zealand because he considered she may be eligible to make such an application. It is of note that eligible people in New Zealand can apply for refugee and protected-person status if they can show that they fear being seriously harmed or tortured or that they risk inhuman or degrading treatment or punishment if they return to a country.
The tenant is a Chinese citizen. She did not disclose the grounds on which her asylum application was based, and it was not necessary for her to disclose that to the Tribunal.
The landlord’s husband is a lawyer that did not have a New Zealand practicing certificate, and was not eligible to hold one, at the time he discussed the possibility of seeking asylum in New Zealand with the tenant. He maintains that he was simply acting as an interpreter for a friend of his that was the lawyer/ immigration adviser assisting the tenant with her application for asylum.
During the hearing, the tenant confirmed that at the time she signed the tenancy agreement she had tickets for her and her daughter to return to China in the first week of January 2023 and that she was making enquiries about any other type of Visa application she and her daughter could make to allow them to remain in New Zealand. Asylum was but one mechanism she was considering.
Section 13A(1)(p) of the Residential Tenancies Act 1986 (“RTA”) confirms that one of the terms a fixed term tenancy agreement must contain is the “the date on which the term will expire”. The statute requires a date and not an uncertain event as the condition upon which a fixed term tenancy will expire. The tenant had only just begun the process of initiating the process of considering applying for asylum for her and her daughter in New Zealand. She was also exploring other options for legally remaining in New Zealand. There was no certainty that she would have ever received an RSU decision on an asylum application and even if she had continued with her that application, there was no certainty when that decision may be made and whether the tenant and her daughter would want to return to China or move elsewhere prior to any such decision being made by the RSU.
The landlord’s claim that the tenancy was fixed term fails for the following reasons: a. There is no certain date on which the tenancy ends in the tenancy agreement; b. The event contained in the tenancy agreement is far too uncertain to be construed as a certain end date; c. Section 13A(1)(p) of the RTA requires a date and not an event as a condition precent for a lawful fixed term tenancy to have been agreed to by the parties.
Therefore, the tenancy was periodic rather than fixed term, despite what is written as an end date in the tenancy agreement and whether that condition precedent was written into the tenancy agreement before or after the tenant signed the tenancy agreement.

How much is owed for rent ?

Section 51(2b) of the Residential Tenancies Act 1986 confirms that “A tenant may terminate a periodic tenancy in any case by giving at least 28 days’ notice”.
Section 51(3)(a) to (d) states “every notice to terminate a tenancy shall be in writing, identify the premises to which it relates, specify the date by which the tenant is to vacate the premises and be signed by the party giving the notice, or by that party’s agent”.
Section 51(4) confirms “In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non- compliance is not such as to mislead or affect unjustly the interests of the recipient”.
The tenant sent a text message to the landlord on 28 January 2023, confirming she was giving notice and would pay rent to the 25 February 2023, being 28 days from the date of the text.
It can be inferred that if the tenant will pay rent to 25 February 2023, that she is giving 28 days’ notice from 28 January 2023.
The tenant then informed the landlord on 3 February 2023 that she was moving out on 4 February 2023, but would pay rent to the end of the notice period being 25 February 2023, as conveyed in her 28 January 2023 text message.
The landlord confirmed she had received the tenant’s 28 January 2023 text message, but stated the end date of the tenancy was not clear to her in that text message. She argued that the tenancy was fixed term, and the tenant could not terminate the tenancy until an RSU decision had been received. Even then, the landlord argued the tenant was contractually required to give one month’s notice after the date the RSU decision was made.
After receiving the 28 January 2023 text message, the landlord conveyed to the tenant her view that the tenancy could not be terminated until one month after the RSU decision had been issued. Further, the landlord confirmed she would not agree to an earlier termination of the tenancy or a reduction in the fixed term of the tenancy. I do not agree with the landlord’s categorisation of the nature of the tenancy and have held that the tenancy is periodic.
Therefore, the remaining question for the Tribunal is does the tenant’s 28 January 2023 text message meet the sections 51(4) and 51(3) requirements to be held to be a valid 28 days’ written notice to the landlord terminating the tenancy.
The 28 January 2023 text message is in writing, does not expressly identify the premises to which it relates (although that can be inferred), does not expressly specify the date by which the tenant is to vacate the premises (but does infer an end date for the tenancy of 25 February 2023) and is not signed by the tenant or her agent, but does come from her phone number, a number the landlord had to communicate solely with the tenant during the tenancy. Therefore, a text from that number would have been known by the landlord to have come from the tenant.
The 28 January 2023 text message does meet the requirements of s51(4) of the RTA. It conveys the tenant’s intention to terminate the tenancy on 25 February 2023 and to pay rent until that date. The notice period provided is clearly 28 days from 28 January to 25 February 2023. Any non-compliance with the requirements set out in s51(3) has not mislead or affect unjustly the interests of the landlord recipient Therefore, the notice cannot be held to be invalid for any failure to comply strictly with the requirements of s51(3).
For the reasons outlined in paragraphs [1] to [25] above, I find the periodic tenancy ended on 25 February 2023.
The landlord provided rent records which prove the rent was paid by the tenant up to and including 10 February 2023.
Therefore, the amount owing at the end of the tenancy is 15 days rent based on $530.00 per week or $75.71 per day, being a total rent arrears of $1.135.71. Filing Fee
Because Hsiang Fen Ying has not succeeded with the claim I dismiss her application to reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4657130 — net $1,135.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,135.71	Rent arrears
Net award	$1,135.71
Bond	$2,120.00
Total payable by Tenant to Landlord	$1,135.71

Order

An application for suppression has been made by the Landlord. The Tribunal declines that application as the Landlord has been wholly unsuccessful in her claims.
The Tribunal orders suppression of the Tenant’s name and identifying details as there are private matters discussed in this application that the Tribunal considers sensitive but that it also considers necessary to outline as part of the rationale for the decisions and orders made.
The tenant must pay Hsiang Fen Ying $1,135.71 from the bond, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,120.00 ([Bond number suppressed]) immediately apportioned as follows: Hsiang Fen Ying$1,135.71 [Tenant name suppressed]$ 984.29
The tenancy is held to be periodic. 28 days’ written notice was given to the landlord by the tenant in her 28 January 2023. The tenancy is held to have ended on 25 February 2023 and rent is payable to that date.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears to 21 May 2023, refund of the full bond, and reimbursement of the filing fee following the end of the tenancy.
When I asked for the basis of the landlord’s claim for rent arrears to 21 May 2023, she confirmed this was the date Tenancy Services asked her for a date the tenancy ended after reviewing her application.
The landlord also confirmed that a new tenant had commenced tenancy of the premises on 1 April 2023. She could not explain why she was holding the tenant accountable for rent to 21 May 2023 when she had been collecting rent from 1 April 2023 from the new tenants.
The amount of rent arrears the landlord can claim is dependent upon whether the tenancy was fixed term or periodic.

Was the tenancy fixed term or periodic?

The tenancy agreement was signed by the landlord on 15 April 2022 and by the tenant on 19 April 2022. There was agreement by the parties that the tenant was initially going to move into the premises on 20 April 2022, but a new start date for the tenancy was agreed, and the tenancy agreement start date was changed to 30 April 2022. This change to the start date was initialled by both parties on or around 20 April 2022.
Much was made by the landlord of the tenancy being fixed term and the conditions of the fixed term tenancy being that the tenancy could not be terminated, except by the landlord’s written consent, until the tenant received a Refugee Status Unit (RSU, previously known as RSB) decision.
At the time the tenancy agreement was written, the tenant had purchased a ticket to go back to China at the beginning of January 2023. The landlord’s husband assisted the tenant to look at whether she may be able to qualify for asylum in New Zealand because he considered she may be eligible to make such an application. It is of note that eligible people in New Zealand can apply for refugee and protected-person status if they can show that they fear being seriously harmed or tortured or that they risk inhuman or degrading treatment or punishment if they return to a country.
The tenant is a Chinese citizen. She did not disclose the grounds on which her asylum application was based, and it was not necessary for her to disclose that to the Tribunal.
The landlord’s husband is a lawyer that did not have a New Zealand practicing certificate, and was not eligible to hold one, at the time he discussed the possibility of seeking asylum in New Zealand with the tenant. He maintains that he was simply acting as an interpreter for a friend of his that was the lawyer/ immigration adviser assisting the tenant with her application for asylum.
During the hearing, the tenant confirmed that at the time she signed the tenancy agreement she had tickets for her and her daughter to return to China in the first week of January 2023 and that she was making enquiries about any other type of Visa application she and her daughter could make to allow them to remain in New Zealand. Asylum was but one mechanism she was considering.
Section 13A(1)(p) of the Residential Tenancies Act 1986 (“RTA”) confirms that one of the terms a fixed term tenancy agreement must contain is the “the date on which the term will expire”. The statute requires a date and not an uncertain event as the condition upon which a fixed term tenancy will expire. The tenant had only just begun the process of initiating the process of considering applying for asylum for her and her daughter in New Zealand. She was also exploring other options for legally remaining in New Zealand. There was no certainty that she would have ever received an RSU decision on an asylum application and even if she had continued with her that application, there was no certainty when that decision may be made and whether the tenant and her daughter would want to return to China or move elsewhere prior to any such decision being made by the RSU.
The landlord’s claim that the tenancy was fixed term fails for the following reasons: a. There is no certain date on which the tenancy ends in the tenancy agreement; b. The event contained in the tenancy agreement is far too uncertain to be construed as a certain end date; c. Section 13A(1)(p) of the RTA requires a date and not an event as a condition precent for a lawful fixed term tenancy to have been agreed to by the parties.
Therefore, the tenancy was periodic rather than fixed term, despite what is written as an end date in the tenancy agreement and whether that condition precedent was written into the tenancy agreement before or after the tenant signed the tenancy agreement.

How much is owed for rent ?

Section 51(2b) of the Residential Tenancies Act 1986 confirms that “A tenant may terminate a periodic tenancy in any case by giving at least 28 days’ notice”.
Section 51(3)(a) to (d) states “every notice to terminate a tenancy shall be in writing, identify the premises to which it relates, specify the date by which the tenant is to vacate the premises and be signed by the party giving the notice, or by that party’s agent”.
Section 51(4) confirms “In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements of subsection (3) so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non- compliance is not such as to mislead or affect unjustly the interests of the recipient”.
The tenant sent a text message to the landlord on 28 January 2023, confirming she was giving notice and would pay rent to the 25 February 2023, being 28 days from the date of the text.
It can be inferred that if the tenant will pay rent to 25 February 2023, that she is giving 28 days’ notice from 28 January 2023.
The tenant then informed the landlord on 3 February 2023 that she was moving out on 4 February 2023, but would pay rent to the end of the notice period being 25 February 2023, as conveyed in her 28 January 2023 text message.
The landlord confirmed she had received the tenant’s 28 January 2023 text message, but stated the end date of the tenancy was not clear to her in that text message. She argued that the tenancy was fixed term, and the tenant could not terminate the tenancy until an RSU decision had been received. Even then, the landlord argued the tenant was contractually required to give one month’s notice after the date the RSU decision was made.
After receiving the 28 January 2023 text message, the landlord conveyed to the tenant her view that the tenancy could not be terminated until one month after the RSU decision had been issued. Further, the landlord confirmed she would not agree to an earlier termination of the tenancy or a reduction in the fixed term of the tenancy. I do not agree with the landlord’s categorisation of the nature of the tenancy and have held that the tenancy is periodic.
Therefore, the remaining question for the Tribunal is does the tenant’s 28 January 2023 text message meet the sections 51(4) and 51(3) requirements to be held to be a valid 28 days’ written notice to the landlord terminating the tenancy.
The 28 January 2023 text message is in writing, does not expressly identify the premises to which it relates (although that can be inferred), does not expressly specify the date by which the tenant is to vacate the premises (but does infer an end date for the tenancy of 25 February 2023) and is not signed by the tenant or her agent, but does come from her phone number, a number the landlord had to communicate solely with the tenant during the tenancy. Therefore, a text from that number would have been known by the landlord to have come from the tenant.
The 28 January 2023 text message does meet the requirements of s51(4) of the RTA. It conveys the tenant’s intention to terminate the tenancy on 25 February 2023 and to pay rent until that date. The notice period provided is clearly 28 days from 28 January to 25 February 2023. Any non-compliance with the requirements set out in s51(3) has not mislead or affect unjustly the interests of the landlord recipient Therefore, the notice cannot be held to be invalid for any failure to comply strictly with the requirements of s51(3).
For the reasons outlined in paragraphs [1] to [25] above, I find the periodic tenancy ended on 25 February 2023.
The landlord provided rent records which prove the rent was paid by the tenant up to and including 10 February 2023.
Therefore, the amount owing at the end of the tenancy is 15 days rent based on $530.00 per week or $75.71 per day, being a total rent arrears of $1.135.71. Filing Fee
Because Hsiang Fen Ying has not succeeded with the claim I dismiss her application to reimburse the filing fee.

Tenancy Tribunal case 4657130 — Rent arrears at 31 Haseler Crescent, Howick, Auckland 2014

At a glance

Tenancy Tribunal case 4657130 — Rent arrears at 31 Haseler Crescent, Howick, Auckland 2014

At a glance

Award balance

Claims & awards

Order

Reasons

Was the tenancy fixed term or periodic?

How much is owed for rent ?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the tenancy fixed term or periodic?

How much is owed for rent ?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions