What was Tenancy Tribunal case 4694075 about?

The tribunal order states: Sarah Moon must pay Tonia Allan as agent for Michelle Houston and Colin

How much money was awarded in case 4694075?

Break Costs: $609.00 awarded to landlord; Compensation: $600.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $1,504.50 awarded to landlord; Kitchen Extractor: $129.38 awarded to landlord; Reinstatement: $220.80 awarded to landlord; Water Rates: $232.84 awarded to landlord

What type of tenancy dispute was case 4694075?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Property damage.

Where can I read the official tribunal order for case 4694075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10113747-Tribunal_Order.pdf.

What was Tenancy Tribunal case 4694075 about?

The tribunal order states: Sarah Moon must pay Tonia Allan as agent for Michelle Houston and Colin

How much money was awarded in case 4694075?

Break Costs: $609.00 awarded to landlord; Compensation: $600.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $1,504.50 awarded to landlord; Kitchen Extractor: $129.38 awarded to landlord; Reinstatement: $220.80 awarded to landlord; Water Rates: $232.84 awarded to landlord

What type of tenancy dispute was case 4694075?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Property damage.

Where can I read the official tribunal order for case 4694075?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10113747-Tribunal_Order.pdf.

19 Kingsley Place, Richmond, Richmond 7020 Tenancy Tribunal Case 4694075 — Rent arrears

Claims and awards in Tenancy Tribunal application 4694075 — net $196.52 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,504.50		Rent arrears
Water rates	$232.84		Water rates
Break costs	$609.00		Break costs
Repairs: Kitchen extractor	$129.38		Repairs: Kitchen extractor
Repairs: Reinstatement	$220.80		Repairs: Reinstatement
Exemplary damages: maximum occupants	$500.00		maximum occupants
Compensation		$600.00	Compensation
Total award	$3,196.52	$600.00
Net award	$196.52
Total payable by Tenant to Landlord	$196.52

Claims and awards in Tenancy Tribunal application 4694075 — net $196.52 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,504.50		Rent arrears
Water rates	$232.84		Water rates
Break costs	$609.00		Break costs
Repairs: Kitchen extractor	$129.38		Repairs: Kitchen extractor
Repairs: Reinstatement	$220.80		Repairs: Reinstatement
Exemplary damages: maximum occupants	$500.00		maximum occupants
Compensation		$600.00	Compensation
Total award	$3,196.52	$600.00
Net award	$196.52
Total payable by Tenant to Landlord	$196.52

Order

Sarah Moon must pay Tonia Allan as agent for Michelle Houston and Colin Cockburn, $196.52 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,400.00 (5367945-003) to Tonia Allan as agent for Michelle Houston and Colin Cockburn immediately.

Reasons

All parties attended the penultimate hearing except Best Property Management Limited. Robinson Property Management Limited did not attend the final hearing. The owner joined by teleconference from Australia.
The tenant sought a break in a fixed-term tenancy and compensation for the landlord’s failure to maintain or allow quiet enjoyment. Exemplary damages were also sought.
The landlords sought compensation and exemplary damages.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where appropriate. Background
The premises are a four-bedroom home. This tenancy commenced 22 March 2023 under agency management by Best Property Management. The prior tenancy had been managed by another property management company.
The tenant stated the big area downstairs was the reason she took place, so she could have boarders. The tenancy agreement permitted two adults and one child. The child was expected to be her son who did not reside fulltime. There was one downstair occupant early in the tenancy but he left. A couple were later placed downstairs as “boarders”.
The initial operation of the tenancy management caused some concern for both the owner and tenant. It appears there were external factors impacting the then agent’s performance and Best Property Management ended its property management on or around 31 July 2023, for all properties under management at that time.
The new agent, Quinovic, initially disputed it was a party to this tenancy. Such a claim was erroneous and while no formal management authority may have been signed, Quinovic assumed the role of agent as transferred by Best Property Management upon its exit. It clearly acted as the landlord and received rent. After assuming the role of property manager Quinovic asserted the terms of the tenancy agreement, especially with regard to the maximum occupancy and use of the downstairs storage facility. A separate dispute between the owners and Quinovic was resolved via another jurisdiction. The dispute regarding the property management meant the agent did not perform all management functions typically expected in situations such as here. I consider that delayed formal action of some issues that were to be later raised in the final agent’s application.
The owner did not want to enter into a property management agreement with Quinovic and a third agent, Tonia Allan commenced from around 30 September 2023 until the end of the tenancy. While the agencies changed, there was some overlap in the actual agent across more than one agency. Tonia Allan was contracted to Quinovic and acted for it during its tenure.
The owners were joined as fourth respondents given some claims of the tenant pertained to direct actions of the owner. No orders are made against the owners. Tenant claims
The tenant sought a reduction in the fixed-term, orders regarding successors, quiet enjoyment, failure to maintain, and unlawful entry. Compensation of $3000.00 was sought. A timetabling for a detailed list of claims from the tenant during adjournment was provided. A written submission was received but it lacked the specificity anticipated. I have inferred as best I could from the original application and subsequent written submission. Reduction of fixed term tenancy
The tenant sought to be released from the fixed-term, claiming to have “been forced out of the property”. Her issue primarily appears to be with the final agent, Tonia Allan, described in the application as “very controlling, nasty & unreasonable”.
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
In this matter events overtook the application so that the tenancy had ended already. However, I have considered if a reduction in the fixed-term would have been determined as that would have some influence on the final rent liability.
I do not consider the threshold for a reduction has been met here. The tenant and the final landlord appear to both have engaged at times in a manner more consistent with a personal dispute rather than a contractual one. I do not consider the changes in agent during the tenancy was an unforeseeable change and the issues raised regarding maximum occupants and storage were subject to clear provisions in the tenancy agreement.
The landlord was entitled to issue the 14-day notice to remedy, effective 16 August 2023, based on the terms of the tenancy agreement. The prior uncertain accommodation by the first agent did not bind the subsequent landlords.
Given I find no grounds to release the tenant from the fixed-term, the question of what rent arrears may be owed will be determined by the exit from the tenancy and the subsequent vacated period. This is addressed later in the order under the Landlord application. Notification of successor to landlord or tenant
Section 15 RTA requires where, during the term of any tenancy, the landlord’s or tenant’s interest passes to some other person, that other person shall, within 10 working days thereafter, cause the other party to the tenancy to be notified of the full name and contact address of that person; and the address at which notices and other documents relating to the tenancy will be accepted by or on behalf of the person.
A failure to comply with this requirement is an unlawful act.
I do not find that the notice of successor was such that s 15 RTA and exemplary damages comes into play. This claim is dismissed. Quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest (see s 109(3) RTA).
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
The tenant did suffer some impact on her quiet enjoyment, beyond what might be reasonably expected. However, the significance of these as later described, from a neutral perspective, appear overstated at times.
I have some sympathy with the tenant being rushed into entering the tenancy before it suited her, only to have a series of property maintenance or repair tasks commence. This appears to be the case here as Jo White, the first agent, noted in an email to the tenant on 12 May 2023 that she was “hoping to get everything sorted for you soon. It’s been a bit of a mission”.
A landlord should not expect unbroken occupancy and some vacated period between tenancies for such work to be carried out is not an unreasonable expectation. Failure to maintain
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenant claims that the landlord failed to remedy several issues within a reasonable timeframe.
The main impact cited was the heat pump. Term 35 in the tenancy agreement required the tenant to regularly clean the heat pump, with the landlord to arrange full services as required. The heat pump was replaced 12 June 2023 but it had been flagged as not working by the tenant as early as 21 April 2023. A work order was raised 24 April and a contractor inspected it on 10 May 2023 but a replacement was then deemed necessary. An oil heater was used in the interim.
The delay in the heat pump assessment and replacement would have impacted the tenant but I find the landlord took reasonable steps in generating the work order promptly. The lapsed time from there to inspection and eventual replacement was longer than desirable but not unreasonable. I do not have evidence of any prior landlord failure to anticipate the heat pump failure.
Other issues raised by the tenant included a stove element not working, downstairs shower door, garage remote, and window gaps. The tenant claims these were not attended to promptly. Mould as a problem was raised by the tenant during the tenancy, particularly with regard the upstairs bathroom ceiling.
I consider a stove element was defective. I do not find however that there was a significant impact on the tenant use of the stove and elements during this time. I find it hard to reconcile the claimed concurrent use of the oven and multiple elements by the tenant with the occupancy and use. I do not consider grounds for specific compensation here have been established.
The downstairs shower door and window gaps were cited as issues in the tenant submissions but I have no evidence of any actual impact from any landlord failure to maintain these.
The garage door closing securely was a problem. It is uncertain how, but after inspection the contractor advised the drive had somehow been switched from auto to manual (a new motor had been installed just before this tenancy) [check]. There does not appear to have been any specific failure of the landlord here.
Mould. In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.
The tenant provided photos of mould on the ceiling but I have no evidence that links any such mould to be a structural flaw rather than the other possibility being behavioural. There was no landlord claim at the end of the tenancy regarding mould and it is assumed it was cleaned off before. Compensation for quiet enjoyment and failure to maintain
As I noted previously, the impacts on the tenant quiet enjoyment and maintenance may be considered overstated but I do accept there has been an impact that should be compensated.
Section 77(2)(n) RTA allows the Tribunal to grant general damages where a landlord or a tenant has breached a provision of the RTA. These damages can include an amount for distress and pain and suffering.
In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 and upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV - 2018-009-002094 [2020] NZDC 17667 at paragraph [36].
It set out the factors that the Tribunal should take into account when making a damages award are: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
Taking these factors into account I award the tenant $600.00, one week rent, for the impacts on her quiet enjoyment and maintenance at the premises. That sum allows for the cost incurred by the tenant in having a key cut. Entry
Sarah Moon claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
I do not have evidence that supports this claim of unlawful activity by any landlord and I dismiss the claim for exemplary damages. Landlord claims
The landlord claimed the tenant sublet the downstairs illegally. It also claimed the tenant committed and unlawful act by not reinstating the premises following a minor change (compensation of $220.80 sought) and abandoning the premises.
Further compensation sought was: a. Rent arrears of $3,009. This was calculated on rent liability between 18 October 2023 and 11 December 2023. This is addressed separately below. b. Water rates of $232.84. This was accepted by the tenant and is awarded. c. Lawns and gardens costing $120.00. This was disputed by the tenant who claimed to have left the outside in reasonable condition. The issue appears to be the growth between the tenant vacate date and the landlord’s actions just prior to the new tenancy. The time difference, and any tenant liability, is considered below. d. Break lease costs of $1,016.60. The landlord provided a breakdown of related costs due to the tenant leaving before the end of the fixed-term. This is also discussed below. e. Repairs to the kitchen extractor costing $258.75. An invoice for this amount was provided. The task was to replace two lamps, one missing and the other failed. A photo was provided. I consider this cost should be shared equally. These are speciality lamps that are expensive and should last a number of years. I award $129.38 towards the replacement cost of the missing lamp. f. Reinstate electricity after it was cut off - at a cost of $90.00. This has not been proven as a tenant liability. It is not clear to me that the tenant set about to have the electricity connection terminated. It is possibly a result of network company instigation during the vacated period before the next tenancy. g. Replace two oven trays at a cost of $196.70. The onus is on the landlord to establish that two oven trays, as later replaced, were provided at the commencement of the tenancy. This onus has not been met, the tenant denies removing any tray, and no compensation order is made. Abandonment
The tenant intended to leave on or around 18 October 2023. Notice of this was served on the landlord, commencing 4 September 2023. The landlord lodged a separate application earlier seeking an order for abandonment. That was denied via the expedited abandonment process and later withdrawn. The landlord claims it did not agree to the withdrawal. The claim of abandonment was upsetting to the tenant. That prior order was issued on 10 November 2023. Its TT number is left out here as suppression was ordered at that time.
However, in view of the tenant having notified the landlord that she was vacating, and the ongoing communication between the tenant and the landlord, the requirements under section 61 of the RTA for abandonment were not satisfied. While the tenant was in breach of their tenancy agreement, the circumstances overall do not amount to abandonment. I concur with the previous adjudicator who declined an expedited abandonment order, and I do not see how the landlord could still consider this tenancy was abandoned given the communication; the dispute about whether/where keys were left notwithstanding.
This view is consistent with the approach by the Tribunal previously in the case of Oxygen.co.nz Limited v Mundy and Cole, where it was noted: Where a tenant makes it clear to the landlord by words or actions that they want to end a fixed term tenancy early, and they stop paying rent, this is a repudiation of the contract but not necessarily an abandonment. This is particularly so where the parties discuss ending the tenancy but cannot agree on the terms. In this situation the landlord can terminate for rent arrears but not, in my view, for abandonment.
It is difficult to understand the basis for seeking an abandonment order in this instance. It appears to have delayed the timeliness of the landlord’s response to the tenant leaving. This is discussed more below.

Did the tenant sublet/exceed the maximum?

The landlords claim the tenant has sublet or parted with possession of the premises without their prior written consent.
In the absence of a specific provision in the tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See section 44(2) and (3) RTA.
In the alternative, the landlord may be viewed as claiming that the number of people living at the premises exceeded the maximum number allowed in the tenancy agreement. Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA.
Breaching these obligations without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500 for subletting and $1,000.00 for failing to ensure the number of residents does not exceed the maximum allowed.
The tenancy agreement specifies that a maximum number of two adults and one child may live in the premises during the tenancy. Provision for an increase in the maximum occupancy existed in the terms, requiring written permission beforehand. A further term (34) requires any potential flatmate must first be approved by the landlord, with full details provided. This term reference back to the maximum occupancy term and states if there was more than one flatmate, rent will increase.
The tenancy agreement is clear on the maximum occupancy. The tenant had one adult residing downstairs during the first part of the tenancy. This was permitted. He left.
On 12 May 2023 the tenant advised the agent that she had asked that person to leave. She said she would let the agent know “when I bring the right person in.” I note in this message the use of the singular rather than the plural with regard to any further occupant, consistent with the maximum occupancy term in the tenancy agreement.
The agent, on behalf of the owner, asked the tenant about a written agreement with her boarder/flatmate. This was sent on 6 July 2023. A reply from the tenant on 10 July 2023 reminded the agent that he had already left, as advised back in May. That same email notified the agent that two travellers had recently been let in and that they “won’t be staying long”. They did not use the upstairs, the same as for the previous “boarder”. The tenant committed to have a written agreement with the two people downstairs if they stayed beyond that week. No written agreement was ever made.
While the impression to the agent was of a short and informal stay, a text by the tenant from 30 June 2023, prior to the later enquiry and arrival of the next downstairs occupants, sets terms for the couple that are considered more reflective of an intent for a longer-term arrangement.
The tenant was unable to produce the anonymous Facebook Marketplace advertisement from June 2023. Provision was made for it to be provided after the hearing as it was considered the wording of that advertisement may have been informative on the intention of the tenant.
Having reviewed the emails from that time, I do not consider the tenant can establish any actual or implied variation to the tenancy agreement that would permit such accommodation of two people downstairs. While the agent said it was okay to have flatmates or boarders I believe any such consent was on the impression this was a short-term stay, and reactive to what was already in place. Regardless, if I did find the occupancy sanctioned by the agent it came with a requirement for the tenant to provide full details and alternative contact persons for those occupants. This was explained as a requirement for insurance purposes and such information was never provided. If it had been, and accepted by the agent, the case for considering the agreement varied may have been stronger.
The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) RTA). This includes equitable remedies such as estoppel.
A party relying on an equitable estoppel must establish that: a. A belief or expectation has been created or encouraged through some action, representation, or omission to act by the other party; b. The belief or expectation has been reasonably relied on to their detriment; c. It would be unconscionable for the party against whom the estoppel is alleged to depart from the belief or expectation.
I do not find the tenant can establish a defence based on the above considerations.
The owners were unaware during this period there were two occupants downstairs. This exceeded the maximum occupancy permitted. While the tenant uses the term “boarders”, I do not consider that the case and that nomenclature appears to be used by the tenant as she claims she was not allowed flatmates due to the nature of her work. I do not consider the downstairs occupancy operated as a boarding agreement. The occupants had no access upstairs, they had to use a bbq for cooking outdoors (purchased by the tenant) and the laundry tub for washing their dishes. There was minimal, if any, communal living or interaction between the two sets of occupants.
But for the confused stance adopted by the agent around the time of discovering the two occupants downstairs, I would seriously consider the tenant intended to sublet. However, I am not satisfied subletting by the tenant has been established here as the agent at that time did not challenge the use of the term boarder or flatmate, and she suggested formalising the arrangement was a possibility; subject to contact details being provided.
The tenant exceeded the maximum number of occupants, without the prior written consent of the landlord. I do not consider the tenant claim that the allowance of a child within the maximum occupancy is transferable to an adult - based on the size of her son – meaning three adults were permitted. I find she has committed an unlawful act.
As I have determined that the tenant committed an unlawful act I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I consider there was intent to exceed the maximum occupancy permitted. The tenant advertised proactively and without seeking prior approval. She received a higher rent than she could have expected from one occupant. Having considered the various factors, I make an order for exemplary damages of $500.00, being the mid-range of the maximum amount set in Schedule 1A RTA for such an unlawful act. Minor change
The landlord claimed the tenant made minor changes which she failed to reinstate after the tenancy ended and sought exemplary damages and compensation.
This claim relies on s46B(4) RTA that states if a minor change is made in accordance with a request under section 42A, the tenant must, on or before the expiry of the tenancy, return the premises to a condition that is substantially the same as the condition that the premises were in before the minor change was made. A failure to do so is an unlawful act.
I do not find that the claim can succeed as I have no evidence of the precursor requirement of s 42A being met.
Even if I am wrong in that, I do not consider, if it was deemed unlawful, that the consideration of factors required by s 109(3) RTA would lead to an order of exemplary damages. Compensation, however, is due.
Having considered the legacy of the minor changes, and related remedial costs incurred by the landlord, I award $220.80 compensation. This is the full amount sought, based on the invoice. Duty to mitigate
Section 49 RTA requires where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract. Term 25 of the tenancy agreement referenced this very requirement.
A brief timetable of relevant dates/events leading to the end of the tenancy follows: Date 4 September 2023Tenant emails giving notice – states 8 October 2023 would be her last day (later changed by the tenant to 20 October 2023) 25 September 2023Tenant requests a break in the fixed-term. 18 October 2023No rent paid after this date. 19 October 2023Tenant sends the landlord a text as to where the keys had been left. Landlord requests confirmation of surrender of possession, writing in a text “Do you give me permission to access and to advertise?”. No response. 26 October 2023Expedited abandonment application lodged. 10 November 2023Expedited abandonment application declined. 12 November 2023Listed for rent. 11 December 2023Last day for any rent liability as a new tenancy forms.
The previous order declining abandonment noted the abandonment was sought by the landlord out of an abundance of caution.
The caution delayed the landlord taking timely steps to find and place new tenants. Part of that caution is considered a response to the fractious relationship between the landlord and the tenant at that time. There is shared accountability for that situation but I consider the landlord failed to mitigate. I do not accept that the lack of tenant response to the landlord request to take possession and advertise, after the tenant clearly indicated she had left and where the keys would be, excuses this.
I have some concerns regarding the delay in landlord activity once the tenant advised she was leaving. It appears the listing of the premises did not commence until after expedited abandonment was declined. This failure to mitigate has an impact on some landlord claims. Rent arrears
The landlord sough rent arrears of $3009.00. This was based on rent liability after the tenant left but stopped paying rent. I have some concerns regarding the extent of the rent arrears and how that may have been lesser through the landlord taking more timely steps to mitigate the loss.
The tenant did not help in her lack of response after messaging where the keys had been left upon her vacate. However, it seems clear in the messaging that the tenant had parted with possession. Any concerns regarding potential subsequent claims of unlawful entry against the landlord may have been avoided through a presumptive closing message to the tenant, advising the tenant that in the absence of any response with a short timeframe, it would be assumed the tenant had parted with possession and the landlord would commence reletting effort immediately.
Separately, I note the new tenancy rent was $80.00 week higher than for this tenancy so a quicker relet would also have increased the rental income to the owner. As it stands, it appears the remaining period of this fixed-term accrued more than $1000.00 rent than if this tenancy continued to the contracted end.
If the tenant had been more cooperative, efforts could have started prior to 18 October, likely reducing the eventual liability. She has some responsibility for the confused steps once she intended to leave.
Having considered each parties actions, I award the landlord half of the rent arrears sought, being $1504.50. Break fee
Section 44A provides for the landlord to recover reasonable incurred expenses. The landlord claimed break lease costs of $1,016.60. The invoice provided (dated 22 November 2023 - below) was for a greater amount, $1,137.28. I have considered the invoice line item breakdown tasks and related costs.
Having reviewed the above items, I make a compensation order of $609.00, being the advertising cost, viewings and three hours for admin. I have considered the three hours of admin sufficient to cover the credit checking and final inspection claimed separately. I have also considered in this allowance the lapsed time of the fixed-term at its end, being over half of the contracted term. Lawns and garden
The landlord sought recovery of an invoice for $120.00. This was incurred to have the lawns mowed and weeds removed prior to the new tenancy commencing. I consider the tenant left the premises with the lawn and garden in reasonable condition. Given the delay in commencing reletting activity, the lapsed time between the tenant vacate and the new tenancy was more than likely longer than it might have been. Grass and weeds grow. Given the sequence and evidence I decline any compensation order for the later gardening. Application filing fee
I leave all applicants to carry their respective application filing fee. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
A previous application ordered suppression, that was for a single issue (a claim of abandonment) and on the adjudicator’s discretion at that time.
Given the wider issues traversed in these subsequent applications, I do not consider any party has automatic grounds for suppression. The tenant in particular expressed concerns if the order was made public. However, I have no compelling evidence of any impact on her as claimed. Essentially, she has not been wholly or substantially successful and, having balanced the interests of the tenant versus the public interest I see no reason to interfere with the default expectation that Tribunal public orders include names. I decline to make any suppression orders.

Tenancy Tribunal case 4694075 — Rent arrears at 19 Kingsley Place, Richmond, Richmond 7020

At a glance

Tenancy Tribunal case 4694075 — Rent arrears at 19 Kingsley Place, Richmond, Richmond 7020

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant sublet/exceed the maximum?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant sublet/exceed the maximum?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions