What was Tenancy Tribunal case 4758537 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4758537?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4758537?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4758537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10025276-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4758537 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4758537?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4758537?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4758537?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10025276-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4758537 — Cleanliness

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
Five tenants signed the renewal of a fixed term tenancy agreement in January 2023. The last day of the fixed term was 26 January 2024. As a group the tenants decided not to renew the fixed term for another year. On 13 November two of the tenants emailed the landlord and asked to assign their tenancies and move out sooner than 26 January. The landlord said no. The tenants filed an application for compensation because the landlord had unreasonably withheld consent to the assignment. They were also concerned about the reference given by the landlord.
On 30 January, at two in the afternoon, the tenants emailed the landlord and the Tribunal and asked to amend the claim to include a breach of quiet enjoyment. The hearing was set down for 9.30am on 1 February. The questions I have to decide are: • Should the claim be amended? • Could the tenancy be assigned? • Was the reference unfair? • Should I allow suppression?

Should the claim be amended?

The tenants request to amend their claim was for exemplary damages because of a breach of quiet enjoyment. While section 136(9) of the Residential Tenancies Act 1986 (RTA) would allow service of the claim by email, I did not consider there was sufficient notice of a claim for exemplary damages because of the possibility the landlord would have to pay a penalty, and because preparing to defend the claim – which considered actions by the landlord on more than one occasion during the tenancy - would reasonably take more than the 8 hours available on 31 January. The landlord did not consent to waiving their right to proper notice of the claim. For this reason I did not allow the tenants to amend the claim.

Could the tenancy be assigned?

The Tenancy Tribunal considers that a fixed term tenancy can only be assigned if all tenants agree to the assignment and all the tenants leave. This is because there is one tenancy. See for example these Tribunal decisions: • [2022] NZTT 4343760 • [2013] NZTT 1477 • [2022] NZTT 4311712
The tenants submitted that the previous Tribunal decisions should be distinguished because in this fixed term tenancy 7 tenants had “assigned” their tenancies. I was provided with the documentation for one such assignment. It is from October 2023 and it is called a “variation of a tenancy agreement”. The purpose of the document is to allow two tenants to move out and two tenants to move in. All the tenants and the landlord have signed the variation.
While I do not have the documentation for all the tenants who moved out, it seems most likely to me that there was a variation of the tenancy rather than an assignment.
There are rules in the RTA governing assignments, and the tenants made good submissions in relation to these. However, there is no similar requirement that landlords consider requests to be released from a fixed term tenancy, especially so close to the end of the fixed term, and when all tenants have said they will move out in January 2024. I find this tenancy could not be assigned. I also find the landlord was not required to take the request for a variation into account. This claim is dismissed.

Was the reference unfair?

I was concerned about whether I could decide a claim for a reference check, but the tenants submitted this was carried out during the current tenancy, and so I have made a finding.
The tenants gave the landlord’s name to their prospective landlord for a reference check. The prospective landlord came to them and said the current landlord had identified some issues with late payments of rent and the cleanliness of the house. The tenants submitted that the current landlord should not have considered the whole tenancy when she have her reference because these tenants had paid all rent on time and kept their room reasonably clean and tidy. The landlord replied that they cannot distinguish individual payments and cleanliness, and that tenants are jointly and severally liable, so it was proper for them to comment on the whole tenancy.
I agree with the landlord. It is settled law that tenants are jointly and severally liable in a tenancy. I do not find there was a breach by the landlord and this claim is also dismissed.

Should I allow suppression?

I have suppressed the landlord’s name because it is the most successful party. I have used my discretion to supress the tenants’ names as well. This is because there are no breaches of the RTA, any interest in the decision is in the law, and parties are encouraged to use the Tribunal to resolve disputes. See section 95A RTA.

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
Five tenants signed the renewal of a fixed term tenancy agreement in January 2023. The last day of the fixed term was 26 January 2024. As a group the tenants decided not to renew the fixed term for another year. On 13 November two of the tenants emailed the landlord and asked to assign their tenancies and move out sooner than 26 January. The landlord said no. The tenants filed an application for compensation because the landlord had unreasonably withheld consent to the assignment. They were also concerned about the reference given by the landlord.
On 30 January, at two in the afternoon, the tenants emailed the landlord and the Tribunal and asked to amend the claim to include a breach of quiet enjoyment. The hearing was set down for 9.30am on 1 February. The questions I have to decide are: • Should the claim be amended? • Could the tenancy be assigned? • Was the reference unfair? • Should I allow suppression?

Should the claim be amended?

The tenants request to amend their claim was for exemplary damages because of a breach of quiet enjoyment. While section 136(9) of the Residential Tenancies Act 1986 (RTA) would allow service of the claim by email, I did not consider there was sufficient notice of a claim for exemplary damages because of the possibility the landlord would have to pay a penalty, and because preparing to defend the claim – which considered actions by the landlord on more than one occasion during the tenancy - would reasonably take more than the 8 hours available on 31 January. The landlord did not consent to waiving their right to proper notice of the claim. For this reason I did not allow the tenants to amend the claim.

Could the tenancy be assigned?

The Tenancy Tribunal considers that a fixed term tenancy can only be assigned if all tenants agree to the assignment and all the tenants leave. This is because there is one tenancy. See for example these Tribunal decisions: • [2022] NZTT 4343760 • [2013] NZTT 1477 • [2022] NZTT 4311712
The tenants submitted that the previous Tribunal decisions should be distinguished because in this fixed term tenancy 7 tenants had “assigned” their tenancies. I was provided with the documentation for one such assignment. It is from October 2023 and it is called a “variation of a tenancy agreement”. The purpose of the document is to allow two tenants to move out and two tenants to move in. All the tenants and the landlord have signed the variation.
While I do not have the documentation for all the tenants who moved out, it seems most likely to me that there was a variation of the tenancy rather than an assignment.
There are rules in the RTA governing assignments, and the tenants made good submissions in relation to these. However, there is no similar requirement that landlords consider requests to be released from a fixed term tenancy, especially so close to the end of the fixed term, and when all tenants have said they will move out in January 2024. I find this tenancy could not be assigned. I also find the landlord was not required to take the request for a variation into account. This claim is dismissed.

Was the reference unfair?

I was concerned about whether I could decide a claim for a reference check, but the tenants submitted this was carried out during the current tenancy, and so I have made a finding.
The tenants gave the landlord’s name to their prospective landlord for a reference check. The prospective landlord came to them and said the current landlord had identified some issues with late payments of rent and the cleanliness of the house. The tenants submitted that the current landlord should not have considered the whole tenancy when she have her reference because these tenants had paid all rent on time and kept their room reasonably clean and tidy. The landlord replied that they cannot distinguish individual payments and cleanliness, and that tenants are jointly and severally liable, so it was proper for them to comment on the whole tenancy.
I agree with the landlord. It is settled law that tenants are jointly and severally liable in a tenancy. I do not find there was a breach by the landlord and this claim is also dismissed.

Should I allow suppression?

I have suppressed the landlord’s name because it is the most successful party. I have used my discretion to supress the tenants’ names as well. This is because there are no breaches of the RTA, any interest in the decision is in the law, and parties are encouraged to use the Tribunal to resolve disputes. See section 95A RTA.

Tenancy Tribunal case 4758537 — Cleanliness

At a glance

Tenancy Tribunal case 4758537 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Should the claim be amended?

Could the tenancy be assigned?

Was the reference unfair?

Should I allow suppression?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the claim be amended?

Could the tenancy be assigned?

Was the reference unfair?

Should I allow suppression?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions