Published tribunal order
Tenancy Tribunal case 4744909 — Rent arrears
Decided 19 Jan 2024 · Published 19 Jan 2024 · Application 4744909
- Rent arrears
- Exemplary damages
Party names are redacted in the official published order.
Order
- By agreement, the term of the fixed-term tenancy of [The tenant/s] at [Tenancy address suppressed] is reduced and now ends at 5:00 pm on 24 th January 2024.
- The Bond Centre is to pay the bond of $5,600.00 ([Bond number suppressed]) to [The landlord/s] immediately.
- [The tenant/s] must pay [The landlord/s] $3,320.44 immediately as below:
Reasons
- Both parties attended the hearing. The tenant attended in person and the landlord attended via teleconference.
- The tenant applied for reduction of the fixed-term tenancy and compensation for the landlord’s unlawful entry.
- The landlord made a cross-application for rent arrears, refund of the bond and exemplary damages for the tenant subletting the premises without the landlord’s permission. The tenant’s application
- The parties’ fixed-term tenancy was originally from 23 rd February 2023 to 23 rd February 2024.
- The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (“RTA”).
- The tenant said that there was an unforeseen change in the tenant’s financial circumstances.
- However, that was due to the tenant having signed a sale and purchase agreement of a new house.
- As the tenant had purchased a new build, the tenant did not know when the settlement date would be exactly.
- However, the tenant should have ensured with the vendor for the settlement date to be after the end of the fixed-term tenancy.
- The tenant buying a new house cannot be considered as an “unforeseen change in the tenant’s circumstances.”
- Although I accept that there would be some hardship to the tenant by having to pay both a mortgage and the rent, that was entirely foreseeable when the tenant had agreed to purchase a new house while under an existing fixed-term tenancy.
- Therefore, I dismiss the tenant’s application for reduction of the fixed-term tenancy.
- The landlord had previously charged the tenant $1,725.00 to break the lease early. However, the landlord made no promises as to when a new tenant would be found and the parties never agreed to fixing an end date itself.
- Since the tenant’s payment of the break lease fee in early September 2023, the landlord had been actively searching for a new tenant to take over the tenancy.
- At the hearing, the landlord confirmed that there was a high chance of a new tenant taking over the tenancy form 25 th January 2024 and was prepared to end the fixed-term tenancy earlier on 24 th January 2024.
- Therefore, I formalise the reduction of the fixed-term tenancy and order the tenancy to end at 5:00 pm on 24 th January 2024.
- As the tenant has already paid for the break lease fee, no other monetary orders are made in relation to this.
- The tenant also claimed that 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) RTA.
- 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 RTA.
- On 12 th October 2023, the landlord was showing a potential tenant around two other units within the same apartment.
- The potential tenant then requested to view a larger unit.
- Noticing that the tenant was home, the landlord went to the tenant’s unit to knock and ask permission for the viewing of the tenant’s unit.
- The landlord said that the landlord heard some screaming from within the tenant’s unit and continued knocking on the door.
- The landlord said that the landlord was concerned about the scream heard and asked “who are you?” The tenant also asked “who are you” back to the voice the tenant heard outside.
- The tenant described the knocking as having lasted for about five minutes. In fear of the person outside the door, the tenant called the building manager for assistance.
- The landlord said that the landlord used a spare key to open the door to check for the tenant’s welfare after hearing a female scream from the inside.
- It was only when the heavy door was opened, the communication between the parties became clearer and the misunderstanding was resolved immediately.
- The tenant allowed for the potential tenant’s viewing there and then.
- It seems that the tenant was cooking at the time and the rangehood fan noise had obstructed their communications.
- It is questionable as to why the landlord did not immediately call the assistance of the building manager or the Police if the situation seemed to be an emergency.
- However, I accept that it was borderline emergency in the circumstances having heard the tenant’s scream at one point.
- The landlord maintained that although the door was unlocked and opened that the landlord did not physically enter the premises.
- I find that this was a one-off event that has happened due to big misunderstanding.
- Therefore, although I do not condone the landlord using the spare key to open the door when there was no evidence that there was an actual emergency happening inside the tenant’s unit, I do not find there is any public interest in awarding any compensation or exemplary damages as a result of this. The landlord’s cross-application
- As the final date of tenancy has been established as 24 th January 2024, the rent owing to the end of the tenancy is calculated to be $8,400.00. This amount was not disputed by the tenant.
- The bond of $5,600.00 will be paid to the landlord to offset the amount owing.
- Further to this, the landlord claimed the tenant has sublet 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.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A RTA.
- In the tenancy agreement, the landlord allowed for three people to be at the premises including the two named tenants. However, the tenancy agreement specified that the premises was not to be sublet without the landlord’s permission.
- The landlord had permitted the tenants to have a flatmate at the premises.
- However, when asked by the tenant, the landlord did not allow the tenant to have the premises as an Airbnb.
- The landlord said that using the premises as an Airbnb would affect the landlord’s accounting but more importantly it was against the Body Corporate rules.
- The tenant had sought permission for the spare room to be used as an Airbnb in April and August of 2023. On both time the landlord said no.
- However, once the flatmate had left in July 2023, the tenant listed the spare room on Airbnb. There was evidence that the tenant had sublet the room between August and November 2023.
- Once the landlord had found out about this, the tenant was told to stop listing the room on Airbnb. The tenant then withdrew the listing from Airbnb.
- The tenant accepted having run the Airbnb without the landlord’s prior consent.
- This is an unlawful act under the RTA.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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 find that the tenant had intentionally committed this unlawful act. Although I accept the tenant was suffering financial hardship by the purchase of a new house, the effect of the unlawful act was the potential financial penalties for the landlord. There is public interest in denouncing this kind of behaviour.
- I order the tenant to pay the landlord $500.00 in exemplary damages for subletting a room for Airbnb in direct contravention of the landlord’s direction. Filing fee reimbursement
- Because the landlord has wholly succeeded with the claim, the tenant must also reimburse the filing fee.