What was Tenancy Tribunal case 4760257 about?

The tribunal order states: The tenancy of [The tenant/s] at 324A Papamoa Beach Road, Papamoa Beach,

How much money was awarded in case 4760257?

ty Limited T/A Quinovic Property Man…: $20.44 awarded to landlord

What type of tenancy dispute was case 4760257?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4760257?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9883737-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4760257 about?

The tribunal order states: The tenancy of [The tenant/s] at 324A Papamoa Beach Road, Papamoa Beach,

How much money was awarded in case 4760257?

ty Limited T/A Quinovic Property Man…: $20.44 awarded to landlord

What type of tenancy dispute was case 4760257?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 4760257?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9883737-Tribunal_Order_Redacted.pdf.

324A Papamoa Beach Road, Papamoa Beach, Papamoa Tenancy Tribunal Case 4760257 — Rent arrears

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4760257. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ty Limited T/A Quinovic Property Management - Mount Maunganui, at 11:59pm on Thursday 8 February 2024. 2. [The tenant/s]	$20.44		ty Limited T/A Quinovic Property Management - Mount Maunganui, at 11:59pm on Thursday 8 February 2024. 2. [The tenant/s

The tenancy of [The tenant/s] at 324A Papamoa Beach Road, Papamoa Beach, Papamoa 3118 is terminated, and possession is granted to Lsa Property Limited T/A Quinovic Property Management - Mount Maunganui, at 11:59pm on Thursday 8 February 2024.

[The tenant/s] is to pay $20.44 to Lsa Property Limited T/A Quinovic Property Management – Mount Maunganui, immediately, to reimburse the filing fee.

Reasons

Ms McDonald attended the hearing by teleconference on behalf of the landlord. [The tenant/s], also attended the hearing by teleconference for the majority of the hearing. However, she hung up the phone 10 minutes before the end of the hearing, saying she had to attend a doctor’s appointment.

The landlord has applied for termination of the tenancy on the basis of recidivist rent breaches, rent arrears and refund of the application fee.

Should the tenancy be terminated?

The Tribunal shall terminate a tenancy, pursuant to section 55(1)(aa) Residential Tenancies Act 1986 (“RTA”), where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrears; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrears, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. See section 55(1)(aa) Residential Tenancies Act 1986 (“RTA”).

The landlord served notices on the tenant dated 20 November 2023, 28 November 2023 and 4 December 2023. The landlord said that for the notice dated 20 November 2023, the tenant paid part of the rent due 4 days’ late and the remainder owing 10 days’ late. For the notice dated 24 November 2023, the landlord said the tenant paid part of the rent arrears owing 5 days’ late and the remainder owing 11 days’ late. Similarly, the landlord said that in relation to the notice dated 4 December 2023, the tenant part paid the rent arrears owing, paying the remainder much later. Thus, the landlord said the tenant has been at least 5 working days in arrears within a 90-day period of 3 separate occasions.

The tenant said the landlord had not considered properly the definition of ‘working day’ in calculating her being late with rent payments, as they included weekends.

Section 2 RTA defines ‘working day’ as any day other than a Saturday and a Sunday, which are the days in issue here. Section 2 goes on to include many other occasions as non-working days, but they were not raised as an issue by the tenant.

Whilst the landlord served these notices on the tenant and the notices contained the dates for which rent was overdue and the amount of overdue rent, none of the notices contained advice of the tenant’s right to make an application to the Tribunal challenging the notice. Nor did any of the notices state how many other notices the landlord had given the tenant under section 55(1)(aa) RTA. The landlord’s application was made within 28 days after the landlord provided the notice dated 4 December 2023.

The provisions of section 55(1)(aa) RTA must be interpreted strictly. See Oxygen.co.nz and Jarvis v Tenant [2022] NZTT 4323995.

As the landlord has not complied with the full requirements outlined in section 55(1)(aa) RTA, I am unable to terminate the tenancy on these grounds.

The landlord has also applied for termination of the tenancy for breach of the tenant’s obligations in having to pay rent pursuant to the Tenancy Agreement, pursuant to section 40(1)(a) RTA.

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) Residential Tenancies Act 1986.

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.

The landlord said they served three 14-day notices on the tenant, as outlined above, on 20 November 2023, 28 November 2023 and 4 December 2023. They said the tenant has breached their obligations by failing to pay rent on time or paying the arrears fully within the 14-day periods.

From the rent summary provided by the landlord, the tenant appeared to have returned the rent arrears to a zero balance by the end of the 14-day notice periods in the last two notices dated 28 November 2023 and 4 December 2023. The rent summary showed arrears of $180.00 as at 4 December 2023, which was the end of the 14-day period in the notice dated 20 November 2023. Therefore, I find that the tenant remedied the breach within the 14-day periods in two of the three 14-day notices served on her, but not for the notice dated 20 November 2023.

At the date of the hearing, the tenant had paid all rent arrears and the rent arrears was at a zero balance to 25 January 2024, according to the rent summary provided by the landlord. The landlord maintained the tenant pays rent during the course of a Tribunal application but not in between them.

The landlord submitted that in the first 56-week period of the tenancy, the tenant was late in paying rent 27 times. Further, the landlord said they have already filed two Tribunal applications regarding non-payment of rent by this tenant. The first application resulted in a conditional termination order being made by the Tribunal and the second resulted in a Mediator’s order which was sealed.

I must next consider whether it would be inequitable to refuse to terminate the tenancy because of the tenant’s actions.

The District Court outlined the factors relevant to a consideration of whether it would be inequitable to refuse to terminate a tenancy in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, at paragraph 61, as follows: a. The history of the tenancy. b. Whether there has been a persistent failure after repeated warnings. c. Whether the history of breaches was such it was unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. Whether termination is a proportionate response to the breach.

The tenancy began on 11 November 2022. The landlord has made three applications to the Tribunal relating to rent arrears over the period of the tenancy so far.

The landlord said the tenant was late paying rent 27 times over a 56-week period at the start of the tenancy and has issued multiple notices to the tenant, aside from those mentioned here. Copies of some of these other notices were provided by the landlord. I find there has been a persistent failure by the tenant after repeated warnings.

Given the history of breaches in late payment of rent by the tenant, I find it unlikely the tenant will comply with her obligations in this regard in the future.

The tenant said that there were times she could not work due to medical issues and that she told the landlord she was making financial arrangements to have the rent paid at the time. Given the number of times the tenant was late paying rent, and how rent arrears have been an ongoing issue for most of the tenancy, despite repeated warnings and requests from the landlord that the situation be rectified, the evidence suggested, however, that these breaches were more deliberate than inadvertent.

The conduct of the landlord was not raised as an issue, other than the tenant saying she believed they wanted her to leave the tenancy so they could charge more rent to a new tenant.

In considering the gravity of the breach, had the tenant been late in paying rent a few times, or incurred a period of rent arrears which was subsequently cleared by the tenant, over the tenancy, I would consider that situation a manageable one for the landlord. However, here the evidence is that, despite two earlier Tribunal applications and opportunities provided following those applications for the tenant to bring things up to date and avoid any further rent arrears issues, the issue of late payment of rent and rent arrears has continued.

The issue of whether termination is a proportionate response to the breach is the last factor to consider. Had this been the first or even possibly the second application to the Tribunal relating to rent arrears breaches, I would likely not consider termination a proportionate response to the breach. However, given this is the third Tribunal application for this tenancy about rent arrears, and given the evidence of ongoing late rent payments and rent arrears issues continuing even since the second Tribunal application, I find the tenant is likely not motivated to comply with her rent obligations in a timely manner. The landlord should not be repeatedly put to the cost and time of filing further Tribunal applications in the circumstances. As such, I find that termination is now a proportionate response to these ongoing breaches over time. As I find it inequitable to refuse to terminate the tenancy, the tenancy is terminated.

As Lsa Property Limited T/A Quinovic Property Management - Mount Maunganui has been successful with the claim I must reimburse the filing fee.

The landlord did not request suppression, but the tenant did request suppression. I note that the Tribunal granted the tenant suppression in an earlier Tribunal order. To ensure consistency as between Tribunal orders, the Tribunal must continue the tenant’s suppression. Therefore, I order that the tenant’s name and identifying details are not to be published.

Order

Claims and awards in Tenancy Tribunal application 4760257. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ty Limited T/A Quinovic Property Management - Mount Maunganui, at 11:59pm on Thursday 8 February 2024. 2. [The tenant/s]	$20.44		ty Limited T/A Quinovic Property Management - Mount Maunganui, at 11:59pm on Thursday 8 February 2024. 2. [The tenant/s