What was Tenancy Tribunal case 4736769 about?

This case concerned a rent arrears dispute.

How much money was awarded in case 4736769?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736769?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4736769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9790152-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4736769 about?

This case concerned a rent arrears dispute.

How much money was awarded in case 4736769?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4736769?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4736769?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9790152-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 97 Seddon Road, Frankton, Hamilton 3204 Tenancy Tribunal Case 4736769 — Rent arrears

Tenantcheck Insights

Reasons

[The property manager/s] appeared for the landlord. There was no appearance by the tenant.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, namely subletting the property without the landlord’s consent.

The tenancy commenced on 02 November 2020 and was for a fixed term to end on 01 May 2021 whereafter it became periodic. On or about 16 October 2023, the tenant’s sharing the same surname advised the landlord that they wished to amend the agreement as the two other tenants were moving out, one of the departing tenant’s is related to the tenant giving the advice, the other tenant is that person’s partner. The amendment proposed assigning one of the departing tenant’s rights to another. It is unclear whether the tenancy would then continue with four or three tenants. [The property manager/s] states that the application then received by the proposed new tenant included seven occupants, the proposed new tenant / applicant, the two-remaining tenants, and four other name persons. [The property manager/s] states that as this would result in overcrowding, exceeding the number of occupants permitted, which is four, the landlord declined the application verbally, and in and email, cited ‘a lack of clarity’.

On or about 03 November 2023, the tenants, who had made the application sent the following email: “Hi We have been trying to inform you of our situation for about one month or so now. That my wife's brother passed away recently so we decided to go back to India for a few months. So, we have found a couple to take over the lease and the bond of our house we have been renting for many years. Now we have found tenents for this property. [redacted] and [redacted] will be living there instead of my family. They have their own business and work. They are happy to sign a 1-year fixed contract if you would like them to. There will be about 3 or 4 of them Will be living in that house now. WE WOULD LIKE THE BOND AND LEASE AGREEMENT TO BE TRANSFERRED TO THEIRS NAMES PLEASE. WE HAVE BEEN ASKING THAT TO BE DONE FOR OVER A MONTH NOW. They have been paying the rent for the past two weeks. They just haven't paid rent on last Tuesday because you haven't transferred the bond and lease agreement under their name yet. They will pay the rent next week for 2 weeks because they are in Auckland for one week. There will be general wear and tear as we have been paying and using the property. The property manager before you knew of some of the bigger damages that were already there before we moved in. Thank you.”

[The property manager/s] states that one of the named persons, who had in fact made the previous application on 16 October 2023, which had been declined, then made a second application on behalf of themselves and the other person named in the email. Upon speaking with the applicants, [The property manager/s] determined that they did not plan to reside in the property as a primary place of residence and proposed that it be occupied by their ‘workers’. Once again it appears that the proposed number of occupants exceeded the maximum allowed. The application has not been produced.

On 07 November 2023, the landlord conducted an inspection of the property where they found 3 unknown males, one of whom stated that they were employed by the applicants. [The property manager/s] stated that it was clear that none of the tenant’s possessions were at the property. The landlord has produced a tenancy inspection report from July 2023 showing furniture and other items belonging to the tenant which are not seen in the inspection conducted on 07 November 2023. The report shows beds in each of the three bedrooms and the lounge.

Following the inspection, the landlord advised the applicant and the tenant that the application was declined, expressing concerns about overcrowding, that it was clear the tenant was no longer at the property, did not appear intend returning, and had sublet without the landlord’s consent.

On the same date the landlord issued the tenant with a 14-day breach notice requiring those found at the inspection to vacate the property and hand over any keys they may have been given by 21 November 2023. The landlord also issued a 14-day notice for rent arrears.

On 10 November 2023, the tenant replied: “Hi I'm letting you know I'm in overseas now when I'm coming back 01/01/2024 Me and My wife and I'm needed house and I'm keeping this property to My self and this property only living me and My wife with my brother son and [redacted] and [redacted] already gone away last Wednesday because he not Good person this why please my English not good enough for explanation for you please try to understand My sucvation and I'm paying you rent in time I'm leaving this property. Long please check My Records and understanding thanks for helping me All the time.”

This appears to be the last correspondence had with the tenant. The landlord filed their application for termination on 10 November 2023, perhaps anticipating that the breach notice would not be remedied.

The landlord conducted another inspection on 21 November 2023 and discovered the males concerned still living at the property. From the inspection report there appears to be 6 beds including two in the lounge. The landlord also states that the tenant failed to fully remedy the rent arrears notice and as of the date of the hearing remained one week in arrears. At the inspection the landlord also formed the view that the occupants had not been maintaining the property in a reasonably clean condition, and along with a second 14-day notice concerning the subletting, also issued a 14-day notice concerning cleaning. However, having viewed the photographs taken for the report, I am unsure whether any claim under section 40(1) of the Act, that the tenant had failed to maintain the property in a reasonably clean condition would be successful.

On 05 December 2023, the landlord conducted another inspection confirming that the males, whom [The property manager/s] states numbered 6 or 7, were still in occupation. [The property manager/s] has produced the inspection report which she states shows some minor damage to walls. In the report [The property manager/s] noted, “overall property needs a good clean”.

On 07 December 2023, the landlord provided the Tribunal with three recidivist rent notices under section 55(1) (aa) of the Act dated 21 November 2023, 28 November 2023, and 07 December 2023. There is no record of the application being formally amended to include a claim for termination under section 55(1) (aa). Law

Pursuant to section 43B of the Residential Tenancies Act 1986 (The “Act”) a tenant may with the prior written consent of the landlord assign the tenancy. Under section 43B (4) and (5) a landlord commits an unlawful act, if having been provided with a written request, which includes the names and contact details of the prospective assignees, fails within a reasonable period to respond to the request. Further, under section 43B (6) of the Act a landlord must not withhold consent unreasonably or attach any unreasonable conditions to any consent. Under section 44(2A) a tenant who sublets without consent commits an unlawful act. If this is proven the Tribunal may, after considering the intention of the person, the effect of the unlawful act, the interests of the party against whom the unlawful act was committed, and the public interest, award exemplary damages of up to $1,500.00. See section 109(3) and schedule 1A of the Act.

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) of the Act.

Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: i. The history of the tenancy. ii. Whether there had been a persistent failure after repeated warnings. iii. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. iv. Whether the breach was inadvertent or deliberately committed. v. The conduct of the landlord. vi. The gravity of the breach. vii. Whether termination is a proportionate response to the breach. Decision

The breach by subletting without consent is one that is capable of remedy. The tenant has been issued with two 14-day breach notices which they have failed to remedy. I am satisfied that there are grounds under section 56(1) of the Act to terminate the tenancy.

The landlord doubts that the tenant intends returning to New Zealand having previously sought to assign the tenancy and appearing to remove all their possessions from the property.

The landlord submits that the situation is untenable. The tenant has essentially lost control of the property, and who is occupying it. There are likely several keys to the property in circulation. The occupiers have no direct responsibility to the landlord. They are not maintaining the property in a reasonably clean condition and minor damage has occurred. As the property is not occupied by the tenants personally, the landlord is concerned the property may not be covered by insurance.

[The property manager/s] states that prior to the first notice for subletting, there had just been the one notice previously issued for rent arrears in five years, and that this had been remedied. Analysis of the rent summary shows that as of 26 October 2023 the tenant was in rent credit before missing just the one payment of $600.00 on 30 October 2023, after which the rent arrear has remained at $508.57.

After considering the facts, on balance I am satisfied that it would in the circumstances be inequitable to refuse to terminate the tenancy.

Section 78(3) of the Act states Any order made by the Tribunal may be unconditional or the subject of such conditions (whether as to time, for mode, compliance, or otherwise) as the Tribunal thinks fit to impose.

While I am satisfied that it would be inequitable to refuse termination, I am also satisfied that there are grounds to make that termination conditional on compliance.

Having considered the email correspondence, the application produced, and hearing from the landlord, it appears that neither the tenant nor the prospective tenants fully understand the application process.

Had the tenant provided evidence that they were, in fact, returning to New Zealand on 01 January 2024, the outcome may have been different.

Having carefully considered the matter, I, therefore, make the termination conditional. If the tenant does not return to reside at the property by midnight on 01 January 2024 the tenancy will terminate, and possession pass to the landlord. Costs

Because [The landlord/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

The landlord seeks name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

The landlord has been substantially successful and is granted name suppression.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

I order suppression of the names of those persons not a party to these proceedings.