What was the outcome of Tenancy Tribunal case 4738651?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4738651?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4738651?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4738651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10134840-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4738651?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4738651?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4738651?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4738651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10134840-Tenancy_Tribunal_Order.pdf.

Unit/Flat 6, 26 St Jude Street, Avondale, Auckland 1026 Tenancy Tribunal Case 4738651 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended the hearing. The landlord was represented Caleb Mills and Leaidy Munoz.
The tenants have applied for a reduction of the fixed-term tenancy which began on 18 March 2023 was due to end on 18 March 2024.
This is a claim by the tenants and so the onus is on the tenants to prove their claim to the civil standard, that is, on the balance of probabilities.
The usual legal position with respect to 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; and 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 tenants explained that when they initially signed their tenancy agreement they fully intended to say for the entire 12-month fixed term. However approximately 7 months into the tenancy they saw a property that they wanted to buy. They then bid on the property at auction, and won.
On 5 October 2023 the tenants sent an email to the landlord advising them that they were purchasing a property and asking to be released from the fixed term.
The landlord responded the same day to say that they would agree to end the tenancy early on the basis that the tenants paid rent until a new tenant was found and would pay the landlord’s reasonable expenses incurred in finding a new tenant. The landlord provided an itemised list of the likely expenses by way of example.
On 18 October 2023 the tenants agreed and the landlord listed the property the following day. New tenants were then found who moved in on 9 December 2023.
These tenants moved out earlier however as they needed to settle on their property purchase and wanted to move into their new home. The landlord says that there is unpaid rent for the period 18 November 2023 to 8 December 2023.
The tenants seek an order reducing the fixed term to 17 November 2023, which is the day that they moved out and stopped paying rent.

Should the fixed term be reduced?

Having considered the tenant’s evidence carefully I do not consider that the tenant has satisfied the provisions of section 66A RTA.
There has been a change in the tenants’ circumstances but that change was not unforeseen. The tenants made a conscious decision to go to auction and bid for a property which they then won.
The tenant’s application for reduction of the fixed term is dismissed.

Did the landlord act unreasonably?

The tenants say that it took longer than necessary to find a new tenant as the landlord did not act reasonably in marketing the property. The tenants say that the landlord increased the rent (and ultimately had to lower the rent to attract a new tenant), used a photo of a different unit when advertising the property and would not hold viewings on the weekend, despite them offering to accommodate weekend viewings.
The landlord explained that they use one photo to advertise all of the units they hold as they are very similar and that prospective tenants will need to view the actual unit before being offered the tenancy. The landlord gave evidence that they have two other units in this block of six and the other two are let at the higher rental advertised. They say that the difficulty in finding a new tenant was the time of year, as it is never easy to find new tenants in November and December with the Christmas break approaching.
Having considered all of the evidence presented and I do not consider that the tenant has proved that the landlord has acted unreasonably. They advertised the property in the usual way and for the same rental as other units in the block.

What happens next?

The landlord has not filed an application for recovery of rent arrears or for itemised and reasonably incurred expenses. The landlord still holds the bond and I have no application before me in respect of the bond.
At the conclusion of the hearing I suggested to the parties that they might wish to discuss matters following the hearing to see if they could reach a resolution on these outstanding issues.

Order

The application is dismissed.

Reasons

Both parties attended the hearing. The landlord was represented Caleb Mills and Leaidy Munoz.
The tenants have applied for a reduction of the fixed-term tenancy which began on 18 March 2023 was due to end on 18 March 2024.
This is a claim by the tenants and so the onus is on the tenants to prove their claim to the civil standard, that is, on the balance of probabilities.
The usual legal position with respect to 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; and 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 tenants explained that when they initially signed their tenancy agreement they fully intended to say for the entire 12-month fixed term. However approximately 7 months into the tenancy they saw a property that they wanted to buy. They then bid on the property at auction, and won.
On 5 October 2023 the tenants sent an email to the landlord advising them that they were purchasing a property and asking to be released from the fixed term.
The landlord responded the same day to say that they would agree to end the tenancy early on the basis that the tenants paid rent until a new tenant was found and would pay the landlord’s reasonable expenses incurred in finding a new tenant. The landlord provided an itemised list of the likely expenses by way of example.
On 18 October 2023 the tenants agreed and the landlord listed the property the following day. New tenants were then found who moved in on 9 December 2023.
These tenants moved out earlier however as they needed to settle on their property purchase and wanted to move into their new home. The landlord says that there is unpaid rent for the period 18 November 2023 to 8 December 2023.
The tenants seek an order reducing the fixed term to 17 November 2023, which is the day that they moved out and stopped paying rent.

Should the fixed term be reduced?

Having considered the tenant’s evidence carefully I do not consider that the tenant has satisfied the provisions of section 66A RTA.
There has been a change in the tenants’ circumstances but that change was not unforeseen. The tenants made a conscious decision to go to auction and bid for a property which they then won.
The tenant’s application for reduction of the fixed term is dismissed.

Did the landlord act unreasonably?

The tenants say that it took longer than necessary to find a new tenant as the landlord did not act reasonably in marketing the property. The tenants say that the landlord increased the rent (and ultimately had to lower the rent to attract a new tenant), used a photo of a different unit when advertising the property and would not hold viewings on the weekend, despite them offering to accommodate weekend viewings.
The landlord explained that they use one photo to advertise all of the units they hold as they are very similar and that prospective tenants will need to view the actual unit before being offered the tenancy. The landlord gave evidence that they have two other units in this block of six and the other two are let at the higher rental advertised. They say that the difficulty in finding a new tenant was the time of year, as it is never easy to find new tenants in November and December with the Christmas break approaching.
Having considered all of the evidence presented and I do not consider that the tenant has proved that the landlord has acted unreasonably. They advertised the property in the usual way and for the same rental as other units in the block.

What happens next?

The landlord has not filed an application for recovery of rent arrears or for itemised and reasonably incurred expenses. The landlord still holds the bond and I have no application before me in respect of the bond.
At the conclusion of the hearing I suggested to the parties that they might wish to discuss matters following the hearing to see if they could reach a resolution on these outstanding issues.

Tenancy Tribunal case 4738651 — Rent arrears at Unit/Flat 6, 26 St Jude Street, Avondale, Auckland 1026

At a glance

Tenancy Tribunal case 4738651 — Rent arrears at Unit/Flat 6, 26 St Jude Street, Avondale, Auckland 1026

At a glance

Claims & awards

Order

Reasons

Should the fixed term be reduced?

Did the landlord act unreasonably?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the fixed term be reduced?

Did the landlord act unreasonably?

What happens next?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions