Published tribunal order
Tenancy Tribunal case 4667522 — Rent arrears at 147B Whangaparaoa Road, Red Beach, Red Beach 0932
Decided 13 Oct 2023 · Published 13 Oct 2023 · Application 4667522
- Rent arrears
Order
- No suppression orders apply around publication of this decision.
- By consent, Fast Rental Limited is granted possession of the premises at 147B Whangaparaoa Road, Red Beach, Red Beach 0932 at 11.59pm on Wednesday 22 November 2023.
- The application for historic water rates is dismissed.
- [The tenant/s] and [The tenant/s] to pay Fast Rental Limited $2,964.20 being rent arrears to 23 July 2021.
- [The tenant/s] to pay Fast Rental Limited $450.00 being rent arrears to 13 October 2023.
Reasons
- Both parties attended the hearing. Mr Li represented the landlord
- The landlord has applied for termination of the tenancy, rent arrears of $42,984.20, and water rates of $16,237.01.
- The tenancy has terminated by notice. It ends on 22 November 2022. I have made a possession order by consent.
- I dismiss the application to terminate the tenancy now based on historic rent arrears.
- The tenancy was a joint fixed term tenancy to 4 November 2018 after which it continued as a periodic tenancy.
- On 20 July 2021 Ms Doughty messaged the landlord to ask to be removed from the tenancy because she had suffered a medical event.
- She sent further messages. The landlord eventually replied and said the tenants would need to attend his office ‘to sort out the lease amendment’. Ms Doughty said she was unable to because she was so unwell.
- After Ms Doughty vacated the tenancy Ms Cormack continued to reside there (and still does). She paid her share of the rent - $450.00 per week.
- The landlord took no further action. It simply let the rent arrears accrue. And it let the water rates accrue from the start of the tenancy.
- The law is clear about a landlord charging for utilities. The accounts must be provided promptly to the tenant and any claims for unpaid utilities promptly made.
- Here, the landlord seeks water rates of $16, 237.01 dating back to 2017.
- I am not prepared to make an order for historic water rates. Too much time has passed. If there are recent water rates owing at the end of the tenancy the landlord can make an application then.
- I note that the bond has been applied to rent arrears around April 2018. There is no bond to be dealt with.
- I find that by continuing with the tenancy after Ms Doughty vacated, with full knowledge she had gone, and by taking no action to recover rent arrears that have accrued since July 2021, the landlord constructively accepted that the tenancy was now solely in Ms Cormack’s name and that the rent would be $450.00 per week from the time Ms Doughty left.
- The landlord could have, and should have, either negotiated a new agreement with Ms Cormack setting a new rent or applied to the Tribunal to terminate the tenancy then.
- It would be unjust for the Tribunal to award such a high amount of rent arrears (almost $40,000.00) against Ms Cormack when the landlord has knowingly let the tenancy continue with her as the sole tenant paying $450.00 per week for rent.
- Landlords have a duty to act promptly for any breach, including rent arrears. The only rent arrears Ms Cormack owes as the sole tenant since July 2021 are $450.00. I have made an order against her solely for that amount.
- The tenants accepted joint liability for the rent arrears up to the time Ms Doughty vacated the tenancy and I have made a rent arrears order against them both for the arrears owing to 23 July 2021.
- Ms Cormack remains liable for rent ($450.00 per week) until 22 November 2023.
- I make no order for reimbursement of the filing fee. The application is only partly successful.
- Neither party sought a name suppression order.