What was Tenancy Tribunal case 4789705 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4789705?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4789705?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4789705?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9993112-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4789705 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4789705?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4789705?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4789705?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9993112-Tenancy_Tribunal_Order.pdf.

62C Songer Street, Stoke, Nelson 7011 Tenancy Tribunal Case 4789705 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant claimed the tenancy was not a fixed-term tenancy, but rather both “myself and the landlords verbally agreed that the agreement will be used as either a periodic or a fixed term agreement. See page 6 point 2, not one of the options are crossed out as both apply according to our verbal agreement.”
If correct, and this was a periodic tenancy, the tenant notice to terminate as served would have been an effective end to the tenancy and any possible, related liabilities.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where applicable.
Some submissions made pertain more to the consequences of the determination that this was a fixed-term tenancy. As advised at the hearing, if the parties cannot resolve such consequences themselves it is expected a landlord application for compensation and rent arrears will follow. The Tribunal has no view on any such claims at this time.
The tenancy commenced on 16 August 2023. By all accounts the tenants were excellent and equally appreciative of the premises. The trigger to break the tenancy was the arrival of their pet dog. I believe it clearly stated in the tenancy agreement and supplementary terms that pets are not allowed. I note the owner’s explanation of her reasons why, when asked to allow the pet to join the family. The tenants needed to find a premises that would allow the dog.

Was this a fixed-term or periodic tenancy?

The premises were advertised by the owners, who are experienced landlords. They later appointed The Rent Shop as their agent due to changes in personal circumstances.
Given the tenancy formation involved the owners, both of them attended the hearing along with their agent.
The owner provided in her written submission information from the tenant application form. She highlighted the selection by the tenant of wanting a medium to long-term tenancy, as well as the encircling “no” to the question regarding any pets. I do not place much weight on the tenant argument that that response was accurate as at that time the dog was still in South Africa.
The parties moved forward and signed the tenancy agreement on 24 July 2023. The tenancy was to commence on 16 August 2023 for a fixed term through to 17 August 2024.
Below is one relevant section copied from the tenancy agreement. The tenant’s position is that the failure to strike out one of the options reflected a verbal agreement that the tenants could leave the tenancy before the end of the fixed term, via the relevant provisions for this a tenant termination of a periodic tenancy.
The second verbal agreement claimed by the tenants, but not reflected in the tenancy agreement, was that their pet dog, at that time residing in South Africa would be able to join them at the premises.
In terms of the written agreement, it appears to read as one would expect for a fixed term tenancy, specifying the end date. I had to consider whether any other form of agreement usurped the terms and the signed tenancy agreement. I also had to consider the tenants submission that the failure to strike out one option in the tenancy agreement negated any fixed term, effectively keeping both options available.
While the owner believed a written contract can only be changed by another written contract I respectfully differ and I did consider whether a promise was made that might bind the landlord.
A promise is enforceable as a contract if it is sufficiently certain and complete, supported by consideration and attended by an intention to contract. The description ‘offer’ connotes that acceptance in accordance with its terms creates a sufficiently certain and complete contract supported by consideration.
Having reviewed the evidence and the submissions I do not find the tenants can rely on their belief they received a promise could usurp the terms in the signed tenancy agreement.
I also do not place significant weighting on the failure to strike out one option. To me it is clear the intention was to form a fixed term until 17 August 2024.
I appreciate the tenants were recent arrivals from South Africa. Tenancy laws may differ between countries however the tenancy agreement is ultimately just a contract that captures the agreed terms between two parties, a process that I consider transcends international boundaries. If verbal reassurances contradictory to any terms in the written contract, or ambiguities, existed it was equally open to the tenant to amend the contract to reflect any such verbal agreement prior to signing.
The tenant did not appear to seek advice from Tenancy Services at the time of entering the tenancy, nor later when the change in their circumstances required a change in the tenancy. The agent at that time, when given notice, highlighted the challenges during that seasonal period in forming a new tenancy. The alternative option of tenancy assignment 1 does not appear to have been explored by the tenant. Such a step was open to them but at their instigation.
I considered a possible application of s 85 RTA. This section provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
In Ziki Investments (Properties) Ltd v McDonald (HC Auckland CIV2008-404- 0038, 23 July 2008), the High Court made it clear that section 85 does not give the Tribunal a carte blanche to decide cases simply on its perception of merits and justice, regard must always be had to the general principles of law. Section 85 can however be used as an aid to interpretation – the general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible.
I do not consider any application of s 85 in favour of the tenant is appropriate. 1 See section 43B Residential Tenancies Act 1986.
The applicant has not satisfied me that it is more likely than not that that any verbal agreement existed between the parties that should take precedence over the signed tenancy agreement. I do not find any failure to strike out one option compelling as I place more weighting on the handwritten fixed term date that is clearly apparent.
I consider the parties entered into a fixed-term tenancy that ended early through tenant notice.
The tenant application is dismissed. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants requested suppression in their application. As the application been unsuccessful no suppression order should be made.

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant claimed the tenancy was not a fixed-term tenancy, but rather both “myself and the landlords verbally agreed that the agreement will be used as either a periodic or a fixed term agreement. See page 6 point 2, not one of the options are crossed out as both apply according to our verbal agreement.”
If correct, and this was a periodic tenancy, the tenant notice to terminate as served would have been an effective end to the tenancy and any possible, related liabilities.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where applicable.
Some submissions made pertain more to the consequences of the determination that this was a fixed-term tenancy. As advised at the hearing, if the parties cannot resolve such consequences themselves it is expected a landlord application for compensation and rent arrears will follow. The Tribunal has no view on any such claims at this time.
The tenancy commenced on 16 August 2023. By all accounts the tenants were excellent and equally appreciative of the premises. The trigger to break the tenancy was the arrival of their pet dog. I believe it clearly stated in the tenancy agreement and supplementary terms that pets are not allowed. I note the owner’s explanation of her reasons why, when asked to allow the pet to join the family. The tenants needed to find a premises that would allow the dog.

Was this a fixed-term or periodic tenancy?

The premises were advertised by the owners, who are experienced landlords. They later appointed The Rent Shop as their agent due to changes in personal circumstances.
Given the tenancy formation involved the owners, both of them attended the hearing along with their agent.
The owner provided in her written submission information from the tenant application form. She highlighted the selection by the tenant of wanting a medium to long-term tenancy, as well as the encircling “no” to the question regarding any pets. I do not place much weight on the tenant argument that that response was accurate as at that time the dog was still in South Africa.
The parties moved forward and signed the tenancy agreement on 24 July 2023. The tenancy was to commence on 16 August 2023 for a fixed term through to 17 August 2024.
Below is one relevant section copied from the tenancy agreement. The tenant’s position is that the failure to strike out one of the options reflected a verbal agreement that the tenants could leave the tenancy before the end of the fixed term, via the relevant provisions for this a tenant termination of a periodic tenancy.
The second verbal agreement claimed by the tenants, but not reflected in the tenancy agreement, was that their pet dog, at that time residing in South Africa would be able to join them at the premises.
In terms of the written agreement, it appears to read as one would expect for a fixed term tenancy, specifying the end date. I had to consider whether any other form of agreement usurped the terms and the signed tenancy agreement. I also had to consider the tenants submission that the failure to strike out one option in the tenancy agreement negated any fixed term, effectively keeping both options available.
While the owner believed a written contract can only be changed by another written contract I respectfully differ and I did consider whether a promise was made that might bind the landlord.
A promise is enforceable as a contract if it is sufficiently certain and complete, supported by consideration and attended by an intention to contract. The description ‘offer’ connotes that acceptance in accordance with its terms creates a sufficiently certain and complete contract supported by consideration.
Having reviewed the evidence and the submissions I do not find the tenants can rely on their belief they received a promise could usurp the terms in the signed tenancy agreement.
I also do not place significant weighting on the failure to strike out one option. To me it is clear the intention was to form a fixed term until 17 August 2024.
I appreciate the tenants were recent arrivals from South Africa. Tenancy laws may differ between countries however the tenancy agreement is ultimately just a contract that captures the agreed terms between two parties, a process that I consider transcends international boundaries. If verbal reassurances contradictory to any terms in the written contract, or ambiguities, existed it was equally open to the tenant to amend the contract to reflect any such verbal agreement prior to signing.
The tenant did not appear to seek advice from Tenancy Services at the time of entering the tenancy, nor later when the change in their circumstances required a change in the tenancy. The agent at that time, when given notice, highlighted the challenges during that seasonal period in forming a new tenancy. The alternative option of tenancy assignment 1 does not appear to have been explored by the tenant. Such a step was open to them but at their instigation.
I considered a possible application of s 85 RTA. This section provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
In Ziki Investments (Properties) Ltd v McDonald (HC Auckland CIV2008-404- 0038, 23 July 2008), the High Court made it clear that section 85 does not give the Tribunal a carte blanche to decide cases simply on its perception of merits and justice, regard must always be had to the general principles of law. Section 85 can however be used as an aid to interpretation – the general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible.
I do not consider any application of s 85 in favour of the tenant is appropriate. 1 See section 43B Residential Tenancies Act 1986.
The applicant has not satisfied me that it is more likely than not that that any verbal agreement existed between the parties that should take precedence over the signed tenancy agreement. I do not find any failure to strike out one option compelling as I place more weighting on the handwritten fixed term date that is clearly apparent.
I consider the parties entered into a fixed-term tenancy that ended early through tenant notice.
The tenant application is dismissed. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants requested suppression in their application. As the application been unsuccessful no suppression order should be made.

Tenancy Tribunal case 4789705 — Rent arrears at 62C Songer Street, Stoke, Nelson 7011

At a glance

Tenancy Tribunal case 4789705 — Rent arrears at 62C Songer Street, Stoke, Nelson 7011

At a glance

Claims & awards

Order

Reasons

Was this a fixed-term or periodic tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was this a fixed-term or periodic tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions