Published tribunal order
Tenancy Tribunal case 4691989 — Rent arrears at 282B Marsden Point Road, Ruakaka 0116
Decided 17 Nov 2023 · Published 17 Nov 2023 · Application 4691989
- Rent arrears
- 14-day notice
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 landlord name and identifying details.
- There are proven rent arrears of $1,840.00 to the rent week ending 14 November 2023.
- Shannon Rae Craft will pay the arrears by the following payments: a. A payment of $585.00 by Monday 13 November 2023; and b. The balance of the arrears ($1,255.00) to be paid in full by Friday 24 November 2023.
- These payments are in addition to the usual weekly rent.
- Payments will be allocated in the following order: rent, rent arrears.
- If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at 282B Marsden Point Road, Ruakaka 0116 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
- Shannon Craft is to pay [The landlord/s] $20.44 immediately, being the filing fee for this application. The conditional termination order does not apply to this payment.
Reasons
- The application seeks termination of the tenancy for rent arrears and other alleged breaches.
- The hearing took place in [Event location suppressed] on 10 November 2023. Both parties attended the hearing. Rent arrears
- On 17 September 2023, [The landlord/s] issued a breach notice requiring Ms Craft to pay rent arrears of $1,585.00 by 1 October 2023.
- [The landlord/s] filed this application on 21 September 2023.
- Under the terms of the Residential Tenancies Act 1986 (“RTA”): a. The Tribunal must make an order terminating the tenancy if, on the date that the landlord makes an application to the Tribunal, the rent was more than 21-days in arrears 1 . b. Even if the rent was not 21-days in arrears on the date that the landlord made the application, the Tribunal may make an order terminating the tenancy if 2 : i. The tenant has breached an obligation under the tenancy agreement or the RTA (including the obligation to pay rent); and ii. If the breach is capable being remedied, the landlord has given the tenant a notice describing the breach and giving the tenant a reasonable period of time (not less than 14 days) to remedy the breach; and iii. The breach was not remedied within the notice period; and iv. The nature and extent of the breach is such that it would be inequitable to refuse the request for termination.
- The Tribunal may make any of its orders subject to any conditions that the Tribunal thinks fit to impose 3 .
- In this instance: 1 Section 55(1) RTA 2 Section 56 RTA 3 Section 78(3) RTA a. The tenant breached the tenancy agreement by falling into rent arrears. b. The rent was not more than 21-days in arrears when the application was filed. c. [The landlord/s] gave the tenant notice of the rent arrears breach. d. The breach was not remedied within the notice period. e. The rent arrears are significant, and have been persistent throughout this relatively brief tenancy.
- There are grounds for termination of the tenancy for rent arrears.
- Having heard from Ms Craft my finding is that it is appropriate to make a conditional termination order in this instance having regard to the following factors: a. Ms Craft now has her rent payments on re-direction through WINZ. b. Ms Craft has a commitment from WINZ to assist with prompt payment of the arrears. c. Ms Craft stated that WINZ will make a payment of $585.00 “tonight”. Ms Craft committed to having the balance of the arrears pay by “next week”.
- I am satisfied that if Ms Craft meets these commitments the breach will be remedied, and she will be unlikely to fall into arrears again. I have allowed a slightly longer period of time for the $585.00 payment and for the payment of the balance of the arrears.
- I have made a conditional termination order. If the conditions detailed above are met, the termination order lapses, and the tenancy will continue. If either condition is not met, the landlord will be entitled to terminate the tenancy. Other alleged breaches
- [The landlord/s] alleged other breaches including: a. Exceeding the maximum number of permitted occupants. b. Causing damage (driveway, window). c. Interfering with the reasonable peace, comfort, and privacy of the neighbours.
- [The landlord/s] also argued that she was induced into the tenancy agreement by a ‘false’ reference. a. Exceeding the maximum number of permitted occupants
- The RTA states 4 : Where the tenancy agreement specifies a maximum number of persons who may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy
- [The landlord/s] submitted that: a. The tenancy agreement specifies a maximum of two occupants, one adult and one child. b. When she carried out an inspection during the tenancy, she noted other persons living there – a female adult with children and Ms Craft’s partner. c. The adult female and children have left but Ms Craft’s partner remains at the premises. She asked for him to be added to the tenancy agreement if he wants to stay, but he has refused.
- [The landlord/s] provided me with her copy of the written tenancy agreement. It contains several handwritten conditions. At the bottom of those conditions there is written “1A 1C” which [The landlord/s] submits denotes one adult one child.
- [The landlord/s] did not provide a copy of the written tenancy agreement to Ms Craft. Ms Craft took a photograph of the agreement at the time of signing. I viewed the photograph on Ms Craft’s phone. The photographed version of the agreement does not have the “1A 1C” notation.
- Landlords are obliged to provide the tenant with a copy of the written tenancy agreement 5 . A breach of this duty is an unlawful act.
- [The landlord/s] did not meet that duty in this instance. The absence of the 1A 1C notation on the only version of the agreement that Ms Craft has introduces the possibility that this notation was added by [The landlord/s] after the agreement was signed, and that it does not form part of the mutually agreed terms.
- Tenants are only obliged to not exceed the maximum number of occupants if the tenancy agreement specifies a maximum number of occupants.
- It is not proven that the tenancy agreement that the tenant signed included such a term.
- Therefore: a. This issue does not provide arguable grounds for termination of the tenancy. 4 Section 40(3) 5 Section 13(2) RTA b. There is no legal basis for [The landlord/s] to require Ms Craft’s partner to agree to be a tenant or to leave. b. Damage
- The driveway is damaged in two places and there is a broken window.
- Tenants are liable for damage to the premises beyond fair wear and tear that is caused by themselves or by someone who is at the premises with their consent 6 .
- There is “damage” to the shared driveway near a culvert. One of Ms Craft’s visitors accidentally drove off the edge of the driveway and partially into the culvert. Some of the GAP metal from the driveway has fallen into the culvert, although it is arguable to what extent this is the result of that incident rather than simply washing off the driveway.
- In any event, this area is not part of the “tenanted premises” that is for the tenant’s exclusive use. It is a shared driveway. Tenants are not liable for damage caused by other persons beyond the perimeter of the tenanted premises.
- The other area of damage is near the house. Again, this was caused by a visitor. This is damage for which the tenant is liable. [The landlord/s] has not yet issued a 14-day breach notice in respect of this damage. I was provided with a photograph of this part of the driveway. The damage is minimal and should be relatively straightforward to repair.
- There is a cracked window at the property. Ms Craft submitted that she does not know what happened to it. She suggested that perhaps it may have been damaged by a stone thrown by the lawnmower. [The landlord/s] checked with the lawnmowing contractor, who could not recall seeing or causing the damage.
- As noted above tenants are liable for damage beyond fair wear and tear that occurs during the period of the tenancy.
- [The landlord/s] intends to re-glaze the window, but she does not have the invoice yet.
- On the limited information available to me I think that the tenant should bear this cost.
- In any event, the cost has not yet been finalised, [The landlord/s] has not issued a 14-day breach notice, and the damage is minor. This does not provide arguable grounds for termination of the tenancy. 6 Section 49B RTA c. Neighbours
- Tenants have a duty to not cause or permit any interference with the reasonable peace, comfort and privacy of the landlord’s other tenants or any other person in the neighbourhood 7 .
- [The landlord/s] submitted that her other tenants have been disturbed / frightened by activity at the tenanted premises.
- [The landlord/s] provided two written statements from neighbours.
- One expresses concern about the number of vehicles coming and going from the property.
- The other describes an incident when “three policemen and a sniffer dog” came to the property.
- At the hearing, Ms Craft explained the circumstances surrounding the police visit. Ms Craft acknowledged that she has visitors, but denied that they are frequent or excessive.
- I accept that the statements express the genuine concerns of the two neighbours.
- However, the Tribunal must take an objective approach to the question of whether there has been proven behaviour by the tenant that amounts to an unreasonable interference with the peace, comfort, and privacy of the neighbours.
- Tenants are allowed to have visitors. It is difficult to determine at what point the frequency of visits becomes “unreasonable”. Certainly tenants should limit visits late at night, and should ask their visitors to drive slowly passing neighbours or on shared driveways.
- The limited evidence available to me does not establish that the number of cars visiting Ms Craft’s property has been so excessive as to amount to an unreasonable interference with the peace, comfort, and privacy of neighbours.
- I accept Ms Craft explanation of the circumstances surrounding the police visit. Again, although I acknowledge that this caused a concern for the neighbours, a police visit does not per se amount to an act that warrants termination of a tenancy. Provide a “false” reference
- [The landlord/s] submitted that: 7 Section 40(2)(c) RTA a. She required Ms Craft to provide a reference when she applied for the tenancy. b. Ms Craft provided a reference, “Bronwyn”, whom she described as a previous landlord. [The landlord/s] contacted Bronwyn, who told her that Ms Craft had been a long-standing and good tenant. c. [The landlord/s] submitted that she has since discovered that Ms Craft was the Respondent in two Tenancy Tribunal orders in 2021 and 2023. d. [The landlord/s] therefore believes that Bronwyn was a fake reference.
- Ms Craft submitted that Bronwyn was in fact a previous landlord of hers, but was not her landlord for the tenancy immediately before this one.
- [The landlord/s] submitted that she specifically asked for a reference from Ms Craft’s last landlord. Ms Craft denied this and submitted that [The landlord/s] simply asked her for a reference, which she gave.
- There is only arguable misrepresentation / fraud if [The landlord/s] specifically asked for a reference from Ms Craft’s last landlord. If she simply asked for a reference, it was not fraudulent for Ms Craft to provide Bronwyn, who (I accept) was a landlord of Ms Craft some time ago.
- On that question, the only evidence available to me is the conflicting recollections of Ms Craft and [The landlord/s]. [The landlord/s] has the burden of proof.
- It is not proven that [The landlord/s] specifically requested a reference from Ms Craft’s last landlord, and therefore I find that the allegation of fraud / misrepresentation is not proven. Filing fee, name suppression
- [The landlord/s] has been successful in respect of the most substantial part of her application (rent arrears, termination).
- Name suppression is granted to the landlord 8 .
- The landlord is entitled to recover the filing fee for this application 9 .