Published tribunal order
Tenancy Tribunal case 4662613 — Rent arrears at Unit/Flat 2, 19 Waihi Way, East Tamaki, Auckland 2013
Decided 5 Sept 2023 · Published 5 Sept 2023 · Application 4662613
Landlord favoured
- Rent arrears
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Nesuto New Zealand Limited as agent for Billion Fortune Limited is granted possession of the premises at Unit/Flat 2, 19 Waihi Way, East Tamaki, Auckland 2013 immediately.
- The Estate of June Elizabeth Mravicich is to pay Nesuto New Zealand Limited as agent for Billion Fortune Limited the sum of $1,827.94 immediately, calculated as follows: DescriptionLandlord Rent arrears at possession date Water rates Filing fee $4,112.88 $94.62 $20.44 Minus bond Total payable by tenant to landlord -$2,400.00 $1,827.94
- The Bond Centre is to pay the bond of $2,400.00 (6434947-007) to Nesuto New Zealand Limited as agent for Billion Fortune Limited.
Reasons
- The Tribunal must consider applications filed by the landlord, and executor of the late tenant.
- The Tenancy agreement on file records the landlord as Billion Fortune Limited by way of an agent, Nesuto New Zealand Limited. The sole tenant was the late June Elizabeth Mravicich. The tenancy commenced on 1 August 2022, and is a fixed term tenancy to run until 31 July 2024.
- Unfortunately Mrs Mravicich passed away on 21 June 2023.
- On 29 June 2023 Peter Mravicich gave 21 days’ notice to the landlord terminating the tenancy. The landlord responded advising it would accept an earlier termination date if Mr Mravicich wished, and ultimately Mr Mravicich responded reducing that notice to 7 days, which was accepted by the landlord, meaning the termination date would be 6 July 2023.
- Later that same day Angela Mravicich emailed the landlord to advise that “the notice period as advised by the Tenancy Tribunal will be 21 days from once I receive the death notice.” That extended notice was not accepted by the landlord. Ms Mravicich who was living in the premises declined to move out.
- On 7 July 2023 Ms Mravicich applied to the Tribunal for orders that she be given further time to vacate the premises, as she needed further time to find somewhere else to live.
- On 21 August 2023 the landlord applied to the Tribunal for orders terminating the tenancy, and for the payment of rent arrears and water rates.
- A hearing was convened in Manukau on 5 September 2023. In attendance was Ms Erickson for the landlord, and Mr Mravicich for the Estate. There was no appearance by Angela Mravicich.
- The parties confirmed that possession has now returned to the landlord.
- Mr Mravicich advised that there are two co-executors, that is himself and Angela Mravicich. Mr Mravicich advised he did not agree to Angela Mravicich moving into the house in the first instance.
LANDLORDS APPLICATION
- The landlord applied for a possession order. That application is now moot because the tenancy has now returned to the landlord. I note for completeness that the Residential Tenancies Act 1986 (RTA) applies, and in particular section 50A which relates to a termination of the tenancy following the death of the sole tenant. 50A Termination following death of sole tenant (1) On the death of a sole tenant under a tenancy agreement (whether for a fixed- term tenancy or a periodic tenancy), the tenancy agreement terminates on the earliest of the following dates: (a) the date that is the 21st day after the date on which the personal representative of the tenant or a person who is the tenant’s next of kin gives the landlord written notice of the death of the tenant: (b) the date that is the 21st day after the landlord gives the personal representative of the tenant or a person who is the tenant’s next of kin written notice to vacate the premises that are the subject of the tenancy agreement: (c) the date that is agreed in writing by the landlord with the personal representative of the tenant or with a person who is the tenant’s next of kin: (d) the date determined as the termination date of the tenancy agreement by the Tribunal on the application of the landlord under subsection (2). (2) If a landlord is unable to give notice to vacate under subsection (1)(b), the landlord may apply, without notice, to the Tribunal for an order to terminate the tenancy.
- As set out in that provision, the tenancy would have terminated by operation of the law, 21 days at the most following notice of the tenants death, by the tenants representative, that could be either Mr or Ms Mravicich. But in this case the parties agreed on an earlier termination date. The landlord was under no obligation to extend that out following the further communication from Ms Mravicich.
- The Estate needed to return possession of the premises on 6 July 2023. Rent arrears
- The landlord seeks rent arrears to the date possession of the premises were returned. A fulsome rent ledger has been presented. Mr Mravicich does not dispute the arrears claim which is ordered in full.
- The bond is to be released to off-set the rent arrears owed. Water rates
- The landlord has claimed water rates. This is also not disputed by the Estate, and is ordered in full.
OCCUPANTS APPLICATION
- The application from the occupant was filed by Angela Mravicich, who is not a tenant, but is the late tenant’s daughter. Ms Mravicich applied to extend out the possession date.
- The problem Ms Mravicich had with that application, is that the tenancy has terminated by operation of section 50A as above. Once the tenancy terminated, possession needed to be returned to the landlord, there was no further right for Ms Mravicich to be on the premises in occupation. The legal term is that Ms Mravicich became a squatter on the premises.
- However, given possession has now been returned to the landlord, there is nothing further for me to adjudicate as far as the Estates application is concerned.