Published tribunal order
Tenancy Tribunal case 4778201 — Rent arrears at 34 Pretoria Street, Hutt Central, Lower Hutt 5010
Decided 8 Feb 2024 · Published 8 Feb 2024 · Application 4778201
- Rent arrears
Party names are redacted in the official published order.
Order
- The tenancy of [The tenant/s] at 34 Pretoria Street, Hutt Central, Lower Hutt 5010 is terminated, and possession is granted to Giovanni Mollo and Beverley Mollo, at 11:59pm on Friday 16 February 2024.
- [The tenant/s] must pay Giovanni Mollo and Beverley Mollo $3,320.44 immediately, in accordance with the following table:
- An application for suppression has been made and the Tribunal directs suppression of the tenant’s identifying details.
Reasons
- Both parties attended the hearing which was held remotely by teleconference.
- The landlords have applied to end the tenancy on two grounds, as follows: i. The rent is in arrears and [the tenant/s] cannot pay the rent going forward. ii. [The tenant/s] associates have threatened the landlords.
- I consider each application separately as follows however I firstly note that the burden of proving their claims lies with the applicants, the landlords. They must do so to the balance of probabilities, which put another way is what is more likely than not. Rent arrears
- Section 55(1)(a) of the Residential Tenancies Act 1986 (RTA) states that the tenancy must be terminated if the rent was 21 days in arrears on the date the application was filed. This includes if it is 21 days in arrears on the hearing date.
- The rent was not 21 days in arrears when the application was filed. Further, the tenancy agreement states that rent is to be paid weekly but does not state that it is required to be paid in advance. Accordingly, the rent is not in 21 days arrears today. Accordingly, the application to terminate the tenancy pursuant to section 55(1)(a) of the RTA is dismissed.
- The landlords have not served any 14 day or 5 day notices on [the tenant/s] with respect to her rent arrears, accordingly applications pursuant to sections 55(1)(aa) and 56 of the RTA cannot be considered.
- I note also that the “notice to terminate” dated 6 January the landlords served on [the tenant/s] does not comply with the requirements of section 51 of the RTA, therefore it is invalid. Threats
- Section 55(1)(c) of the RTA states that the Tribunal must terminate the tenancy if the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, the landlord.
- Mrs Mollo gave evidence that on 5 January she attended the house to drop off a letter for [the tenant/s]. Whilst there some of [the tenant/s] guests yelled at her, spat at her and tried to attack her. She says that further on 8 January when she attended for an inspection [the tenant/s] told her that ‘her partner’ would “sort [her] out”.
- Mr Mollo gave evidence of a subsequent text message from [the tenant/s] partner saying: “Yous are fucked cunt”. He says this is threatening and concerning as they know where they live, he has young children in the house and this man has a history of violence. Mr and Mrs Mollo say they are too scared to attend the property any longer.
- [The tenant/s] says this was not a threat and this person is no longer her partner, nor does he live at the house. She also says the girl in the video was just a friend visiting. She further says that the Mollos have been threatening to her and trying to evict her unlawfully.
- After the hearing [the tenant/s] provided a video recording of part of the interaction on the 5 th . This shows Mrs Mollo spitting at [the tenant/s’] friend and being spat on in response. It also shows [the tenant/s’] friend getting aggressive, attempting to reach Mrs Mollo and then saying that they will “smash” her and “punch” her.
- [The tenant/s] also provided another video of Mr Mollo standing over her and telling her she must leave on another occasion. In that video an associate of Mr Mollo’s can be heard to say “I’ll smash your fucking face in”.
- Having reviewed the videos, I make the following findings: a. [The tenant/s’] friend did physically threaten Mrs Mollo and may well have followed through on that threat had her friends not held her back and Mrs Mollo not got in her car and left. However, [the tenant/s] did not permit or cause her to make these threats, in fact she was very calm in this interaction and kept out of the conversation between Mrs Mollo and this lady. b. [The tenant/s’] former partner has threatened Mr and Mrs Mollo on the same day but after [the tenant/s] has told them that he would take action against them. He therefore most likely did so with some instigation from her following on from events on the 5th. c. Mr and Mrs Mollo have been threatening to [the tenant/s] and have acted inappropriately in these interactions. However, I cannot consider their actions further as there is no application before me to do so.
- Accordingly, I find that the requirements of section 55(1)(c) of the RTA have been met and as such I must terminate the tenancy. In coming to this finding I also take into account that [the tenant/s] has agreed that the tenancy should terminate at some stage and also that she cannot pay the rent.
- Given the inappropriate actions of both parties I have given some time for the tenancy to end. 1 [The tenant/s] advised me that she cannot pay the rent at the hearing which is why she has not paid the last month’s rent, therefore I have made the rent arrears order to cover the last weeks of the tenancy.
- Because the landlords have wholly succeeded with the claim, I must reimburse the filing fee. 1 See section 85 of the RTA
- Pursuant to section 95A of the RTA I direct that [the tenant/s’] details be suppressed from the published order. I have made this direction as I consider it disproportionate to the situation to publish her details given the inappropriate actions the landlords have taken.