What was Tenancy Tribunal case 4778277 about?

The tribunal order states: [The tenant/s] must pay Kāinga Ora–Homes And Communities

How much money was awarded in case 4778277?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4778277?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4778277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10214964-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4778277 about?

The tribunal order states: [The tenant/s] must pay Kāinga Ora–Homes And Communities

How much money was awarded in case 4778277?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4778277?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4778277?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10214964-Tenancy_Tribunal_Order.pdf.

1 Waihora Crescent, Waitangirua, Porirua 5024 Tenancy Tribunal Case 4778277 — Rent arrears

Order

[The tenant/s] must pay Kāinga Ora–Homes And Communities $21,088.50 immediately, being rent arrears to 18 April 2024.

Reasons

Ms Smith attended the teleconference hearing on behalf of the landlord. Ms Masaga, the tenant, also attended the teleconference hearing.
The landlord has applied for rent arrears and has provided rent records which prove the amount owing to 18 April 2024, which is $24,810.00. Landlords’ requirement to mitigate the loss
One of the notable features of this case is that rent arrears have climbed steadily since very early on in the tenancy in 2019.
Section 49 Residential Tenancies Act 1986 (“RTA”) provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The rules of law are summarised in Halsbury’s Laws of England (4 th ed, 1975) vol 12 at [1193]-[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.
It is open to the Tribunal to reduce the level of rent ordered to be paid, following a finding that the landlord failed to mitigate their loss. I note for example, the District Court decision of Dunn and Dunn v Beedie and Beedie CIV-2014-088- 000349. In that case the Tribunal determined that the applicant landlords had taken some steps in relation to the tenant’s rent arrears but failed to take the ultimate step, which was to terminate the tenancy. The Tribunal then reduced the amount of rent arrears owed by 10% in recognition of the landlord’s failure to properly mitigate the loss.
The landlord appealed the Tribunal’s decision to the District Court. Unusually, the tenant then requested that the appeal be found in the landlord’s favour requiring them to pay the full arrears to the landlord, but the Court commented that: I note in passing that the adjudicator could not be faulted for rightly pointing to s 49 of the Act and there have been cases where that clause has worked to reduce rent arrears where failure to mitigate exists.
In my assessment, in the current case the landlord has not acted reasonably to mitigate their loss as it relates to rent arrears, and therefore have incurred losses which would have been avoidable otherwise. Generally, a reasonable landlord when presented with increasing arrears, would raise the issue with the tenant to get the rent payments back on track. If that direct approach is not successful then the landlord has an option of issuing a 14-day notice to the tenant requiring the arrears to be addressed, and rent payments made as required. If a 14-day notice does not resolve the issue, then the landlord can apply to the Tenancy Tribunal for orders the arrears be paid, or even to terminate the tenancy to avoid arrears increasing further. Alternately, the landlord can apply to terminate the tenancy when the arrears reach the 21-day mark.
In this case, arrears began early in the tenancy from 2019 and continued to steadily increase. Whilst Ms Smith said the landlord sent a number of letters, texts and emails to the tenant about the rent arrears, and requested meetings with the tenant, the only result obtained was when the tenant agreed to pay an extra $20.00 per week on top of her usual rent towards arrears, which, from the rent summary provided, appeared to start around April 2022. The arrears at that point were around the $7,000-8,000.00 level, the amount of which did not change much until around August 2023. Just prior to August 2023, the Ministry of Social Development (“MSD”) indicated that, unless the tenant filed an application to review rent with MSD, rent was likely to increase in August 2023 to a market rent. The landlord said they sent a number of letters to the tenant from May 2023 onwards asking her to file such an application to review the rent assessed at a market rate, as did MSD apparently. However, the tenant did not file this application to review the market rent assessment until February 2024. The tenant’s application was subsequently declined and notified to the landlord on 4 April 2024.
From August 2023 onwards, the new market rent assessed of $626.00 per week was not paid by the tenant. The tenant continued to pay only $274.00 per fortnight, which increased to $294.00 per fortnight on 23 February 2024, to include an additional $20.00 per fortnight towards arrears. During this period, the arrears climbed steeply.
The only 14-day notice issued to the tenant to remedy rent arrears that the landlord was aware of was in May 2023. The landlord did not provide any evidence of any other 14-day notices issued to the tenant before or after that. The tenant said she did not recall receiving this 14-day notice and thought she would have noticed a more formal letter such as this. The tenant said she had had 4 different case managers during her tenancy and did not hear from them often. The tenant said she was made aware her arrears were around the $8,000.00 mark in around 2022 and the next she believed she was made aware of the amount of her rent arrears was at the beginning of 2024, when she was told the arrears were around $20,000.00. The tenant said she did not file the rent review application with MSD until February 2024 as she had a lot of other things going on. She said she works full time and her partner, who lives with her, is self-employed. She said her partner receives staggered income payments. She said she also has her children living with her.
In May 2023, when the landlord said they issued their likely only 14-day notice, the arrears were around the $8,000.00 level. The tenant did not comply with the 14-day notice but there was no evidence of the landlord following up on this and signalling any stronger action to the tenant, other than the regular correspondence about rent arrears. The arrears increased significantly and sharply with the rent increase to $626.00 per week in August 2023, and, though no application to review the market rent was filed by the tenant until February 2024, and the tenant was only paying $274.00 per fortnight in rent, sometimes less than this, the landlord did not take any further action until 9 January 2024, when they filed this Tribunal application, which the landlord said was the only Tribunal application made in relation to this tenancy.
Despite the delay in filing the rent review with MSD being due to the tenant, I find the landlord could have taken further action, such as following up on the tenant’s non-compliance with the May 2023 14-day notice, issuing further 14- day notices to remedy rent arrears after May 2023, and filing earlier Tribunal applications for rent arrears orders, or even applying to terminate the tenancy, but they did not. It would have been obvious to the landlord much earlier in the tenancy that their ongoing correspondence via letters, emails and texts to the tenant, was not yielding results and that their losses were increasing significantly, and yet little effective action was taken.
As I find the landlord has failed to mitigate their loss with rent arrears, and given the length of time over which little effective action was taken and the significant amount the rent arrears rose to as a result of this, I reduce the rent arrears owing by the tenant in the amount of $24,810.00 by 15% to $21,088.50.
The tenant requested name suppression. The tenant has not been successful in the claim.
Section 95A(4) RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or party of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant did not provide any evidence, nor was any evidence apparent during the hearing, as to why her interests in not having her name published outweighed the public interest in doing so. The amount of rent arrears is significant with very little action being taken by the tenant to effectively address this. As such, I do not grant suppression.

Order

[The tenant/s] must pay Kāinga Ora–Homes And Communities $21,088.50 immediately, being rent arrears to 18 April 2024.

Reasons

Ms Smith attended the teleconference hearing on behalf of the landlord. Ms Masaga, the tenant, also attended the teleconference hearing.
The landlord has applied for rent arrears and has provided rent records which prove the amount owing to 18 April 2024, which is $24,810.00. Landlords’ requirement to mitigate the loss
One of the notable features of this case is that rent arrears have climbed steadily since very early on in the tenancy in 2019.
Section 49 Residential Tenancies Act 1986 (“RTA”) provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The rules of law are summarised in Halsbury’s Laws of England (4 th ed, 1975) vol 12 at [1193]-[1194]: The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong, and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. The plaintiff is only required to act reasonably, and whether he has done so is a question of fact in the circumstances of each particular case, and not a question of law.
It is open to the Tribunal to reduce the level of rent ordered to be paid, following a finding that the landlord failed to mitigate their loss. I note for example, the District Court decision of Dunn and Dunn v Beedie and Beedie CIV-2014-088- 000349. In that case the Tribunal determined that the applicant landlords had taken some steps in relation to the tenant’s rent arrears but failed to take the ultimate step, which was to terminate the tenancy. The Tribunal then reduced the amount of rent arrears owed by 10% in recognition of the landlord’s failure to properly mitigate the loss.
The landlord appealed the Tribunal’s decision to the District Court. Unusually, the tenant then requested that the appeal be found in the landlord’s favour requiring them to pay the full arrears to the landlord, but the Court commented that: I note in passing that the adjudicator could not be faulted for rightly pointing to s 49 of the Act and there have been cases where that clause has worked to reduce rent arrears where failure to mitigate exists.
In my assessment, in the current case the landlord has not acted reasonably to mitigate their loss as it relates to rent arrears, and therefore have incurred losses which would have been avoidable otherwise. Generally, a reasonable landlord when presented with increasing arrears, would raise the issue with the tenant to get the rent payments back on track. If that direct approach is not successful then the landlord has an option of issuing a 14-day notice to the tenant requiring the arrears to be addressed, and rent payments made as required. If a 14-day notice does not resolve the issue, then the landlord can apply to the Tenancy Tribunal for orders the arrears be paid, or even to terminate the tenancy to avoid arrears increasing further. Alternately, the landlord can apply to terminate the tenancy when the arrears reach the 21-day mark.
In this case, arrears began early in the tenancy from 2019 and continued to steadily increase. Whilst Ms Smith said the landlord sent a number of letters, texts and emails to the tenant about the rent arrears, and requested meetings with the tenant, the only result obtained was when the tenant agreed to pay an extra $20.00 per week on top of her usual rent towards arrears, which, from the rent summary provided, appeared to start around April 2022. The arrears at that point were around the $7,000-8,000.00 level, the amount of which did not change much until around August 2023. Just prior to August 2023, the Ministry of Social Development (“MSD”) indicated that, unless the tenant filed an application to review rent with MSD, rent was likely to increase in August 2023 to a market rent. The landlord said they sent a number of letters to the tenant from May 2023 onwards asking her to file such an application to review the rent assessed at a market rate, as did MSD apparently. However, the tenant did not file this application to review the market rent assessment until February 2024. The tenant’s application was subsequently declined and notified to the landlord on 4 April 2024.
From August 2023 onwards, the new market rent assessed of $626.00 per week was not paid by the tenant. The tenant continued to pay only $274.00 per fortnight, which increased to $294.00 per fortnight on 23 February 2024, to include an additional $20.00 per fortnight towards arrears. During this period, the arrears climbed steeply.
The only 14-day notice issued to the tenant to remedy rent arrears that the landlord was aware of was in May 2023. The landlord did not provide any evidence of any other 14-day notices issued to the tenant before or after that. The tenant said she did not recall receiving this 14-day notice and thought she would have noticed a more formal letter such as this. The tenant said she had had 4 different case managers during her tenancy and did not hear from them often. The tenant said she was made aware her arrears were around the $8,000.00 mark in around 2022 and the next she believed she was made aware of the amount of her rent arrears was at the beginning of 2024, when she was told the arrears were around $20,000.00. The tenant said she did not file the rent review application with MSD until February 2024 as she had a lot of other things going on. She said she works full time and her partner, who lives with her, is self-employed. She said her partner receives staggered income payments. She said she also has her children living with her.
In May 2023, when the landlord said they issued their likely only 14-day notice, the arrears were around the $8,000.00 level. The tenant did not comply with the 14-day notice but there was no evidence of the landlord following up on this and signalling any stronger action to the tenant, other than the regular correspondence about rent arrears. The arrears increased significantly and sharply with the rent increase to $626.00 per week in August 2023, and, though no application to review the market rent was filed by the tenant until February 2024, and the tenant was only paying $274.00 per fortnight in rent, sometimes less than this, the landlord did not take any further action until 9 January 2024, when they filed this Tribunal application, which the landlord said was the only Tribunal application made in relation to this tenancy.
Despite the delay in filing the rent review with MSD being due to the tenant, I find the landlord could have taken further action, such as following up on the tenant’s non-compliance with the May 2023 14-day notice, issuing further 14- day notices to remedy rent arrears after May 2023, and filing earlier Tribunal applications for rent arrears orders, or even applying to terminate the tenancy, but they did not. It would have been obvious to the landlord much earlier in the tenancy that their ongoing correspondence via letters, emails and texts to the tenant, was not yielding results and that their losses were increasing significantly, and yet little effective action was taken.
As I find the landlord has failed to mitigate their loss with rent arrears, and given the length of time over which little effective action was taken and the significant amount the rent arrears rose to as a result of this, I reduce the rent arrears owing by the tenant in the amount of $24,810.00 by 15% to $21,088.50.
The tenant requested name suppression. The tenant has not been successful in the claim.
Section 95A(4) RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or party of the evidence given or the name or any identifying particulars of any witness or party not be published.
The tenant did not provide any evidence, nor was any evidence apparent during the hearing, as to why her interests in not having her name published outweighed the public interest in doing so. The amount of rent arrears is significant with very little action being taken by the tenant to effectively address this. As such, I do not grant suppression.

Tenancy Tribunal case 4778277 — Rent arrears at 1 Waihora Crescent, Waitangirua, Porirua 5024

At a glance

Claims & awards

Tenancy Tribunal case 4778277 — Rent arrears at 1 Waihora Crescent, Waitangirua, Porirua 5024

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions