Published tribunal order
Tenancy Tribunal case 4694309 — Rent arrears at 18 Guy Avenue, Levin, 5510
Decided 26 Oct 2023 · Published 26 Oct 2023 · Application 4694309
Landlord favoured
- Rent arrears
- Cleanliness
Order
- Under section 78(1)(a) it is declared that the agreement to rent the cabin delivered to 18 Guy Avenue Levin is a residential tenancy and is subject to the Residential Tenancies Act 1986.
- Mandi McGinnity must pay Barry John Heal $2,683.39 immediately, calculated as shown in table below.
Reasons
- The hearing was conducted remotely. The landlord attended but two attempts to reach the tenant by phone were unsuccessful.
- This claim concerns the hiring of a portable cabin that was delivered to the address of 18 Guy Avenue, Levin for the tenant to live in. The Tribunal is often asked to consider jurisdiction where the rental agreement concerns a caravan or cabin on land that is owned by the lessor/landlord. An agreement regarding a portable cabin on other land is unusual.
- The landlord originally filed his application in the Disputes Tribunal, having been advised by Tenancy Services that that was the appropriate forum.
- The Disputes Tribunal referee considered that there was a possibility that the rental agreement was a residential tenancy and quite properly referred the applicant to the Tenancy Tribunal to determine jurisdiction.
Is the agreement a residential tenancy?
- The parties signed an agreement for hire of a portable cabin which was subsequently delivered to 18 Guy Avenue Levin. The landlord said that he has some rental properties and that this cabin was on a rental property and was surplus to requirements. He advertised it on Facebook and delivered it to the address, where the tenant’s sister was living in another property. He understood the tenant was going to live in it. When he went to create a tenancy agreement, the terms and conditions did not quite fit the arrangement and so that is why he found another standard hire agreement and used that.
- The start date was 28 April 2023 and the term was for 6 months. The original start costs also included a delivery fee of $250. The weekly “hire charge” was $80.00.
- Under section 78 Residential Tenancies Act 1986 (the Act), the Tribunal may “make an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise”.
- Section 4 says that the Act applies to every tenancy for residential purposes except as specifically provided.
- Section 2 contains a number of definitions: premises includes any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful tenancy in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and,where appropriate, also includes a former tenancy
- Based on those definitions, I am satisfied that the portable cabin is an “other means of shelter placed or erected upon any land and intended for occupation on that land” and that portable cabin meets the definition of residential premises because it was used as a place of residence. The landlord granted the tenant the right to occupy the premises in consideration for rent, and so there was a tenancy.
- Section 5 provides for certain exceptions in relation to caravans. Under section 5 (ta) says that where the tenant occupies, under a tenancy agreement, a cabin, caravan, vehicle, tent, or other building or structure that is located in a camping-ground and is intended for human habitation for periods not exceeding 50 days in any continuous term of occupancy, the Residential Tenancies Act does not apply. The agreement in the present case does not meet those criteria.
- Accordingly, I declare that the agreement to hire the portable cabin is a residential tenancy for a fixed term of 6 months and this Tribunal has jurisdiction to determine disputes about the tenancy. Landlord claims
- Very soon the tenant stopped paying rent. The landlord provided a rent summary showing that the last payment was on 28 June 2023 two earlier payments having been missed. He sent various text messages.
- On 6 July 2023 the landlord went to the address to discuss the matter and Ms McGinnity’s partner was present in the cabin. He said she was in the shower in the house and could not talk to the landlord. The landlord noted there was drug paraphernalia in the cabin and a chemical smell indicating methamphetamine had been smoked in there. The smoke alarm was missing. The landlord advised Mr Dell if the arrears were not paid by 12 July he would uplift the cabin.
- On 12 July 2023 the landlord notified the tenant in writing that she was $280 in arrears. She did not pay and on 14 July 2023 the cabin was uplifted at an expense of $345.00 for which the landlord produced a receipt. He said that the cabin had been vacated and was almost empty. He left the remaining chattels with the tenant’s sister. It is arguable that the landlord would have had to remove the cabin at the end of the tenancy in any event, but I accept that given the non-payment of rent and the tenant’s failure to keep the premises free from damage, he needed to remove the cabin promptly.
- The cabin smelt of a chemical smell. He had been assured that no methamphetamine had been manufactured in the premises, only that it had been smoked. The landlord recognised the smell as he is familiar with it because of his occupation. He has scrubbed the walls and repainted the entire interior and had the curtains commercially cleaned. The smell remains.
- In addition to the cabin removal, the landlord receipts for: Carpet cleaning $69.00 Paint$271.00 Smoke alarms$42.95 Dry cleaning $35.00 Total $417.95
- In addition the landlord claimed 20 hours at $25.00 for cleaning and painting. That totals $500.
- I find that the damage is more than fair wear and tear and that the tenants are responsible for it. The amounts claimed are reasonable and I order $917.95 for repairs and cleaning and $345 for uplifting the cabin.
- The landlord sought rent of $1,720.
- The tenant was liable for rent until the expiry of the fixed term, which is 27 October 2023. The total rent payable for the duration of 26 weeks was $2,080. According to the rent summary, the tenant paid a total of $680, leaving a balance of $1,400. Put another way, after 12 weeks, the tenant was $280 in arrears. She had a further 14 weeks on her tenancy, which is $1,120. Again, the total owing is $1,400.
- Because Barry John Heal has substantially succeeded with the claim I have reimbursed the filing fee.