What was Tenancy Tribunal case 4791180 about?

The tribunal order states: No orders are made.

How much money was awarded in case 4791180?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4791180?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4791180?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10031239-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4791180 about?

The tribunal order states: No orders are made.

How much money was awarded in case 4791180?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4791180?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4791180?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10031239-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4791180 — Exemplary damages

Order

No orders are made.

Reasons

Both parties attended the hearing, conducted via video conference.
The tenant application sought assignment of one tenant.
The landlord application sought exemplary damages for maximum number of people being exceeded. Assignment
Section 43B Residential Tenancies Act 1986 provides for assignment of a tenancy.
In this instance, one tenant in a fixed-term tenancy wants to leave and assign another as the second tenant.
Of note, s 43B, in part, states: (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms.
The landlord has declined a proposed assignment. It has offered to accept a surrender.
The issue of assignment here is in part linked to the landlord’s application below. I will address that and then conclude on the reasons for no orders. Maximum number
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) Residential Tenancies Act 1986.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A Residential Tenancies Act 1986.
The tenancy agreement specifies that the maximum number of two people may live in the premises during the tenancy. I find no grounds to infer a variation to that condition, or any affirmation took place that might increase that number above the contracted two people.
The tenants have had a third person living there as a flatmate. That is not disputed.
I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
As indicated at the hearing, I do not consider, given the considerations above, and the circumstances of the tenancy overall that any orders for exemplary damages should be made. I make my finding on law so that if the situation is repeated and the landlord makes a similar application, the consideration of s 109(3) at that time may also reflect the clear advice given to the tenants today. Decision
The reality is that the proposed two tenants do not appear to be in a position to pay the full rent. The income from the flatmate has subsidised rent to date and the landlord has asserted, and confirmed, the maximum occupancy must remain at two. I have no grounds to interfere with what is a key term of the tenancy agreement.
It is unfortunate but the tenancy, as established in 2021, has changed and I do not find the landlord should be compelled to accept an assignment in this instance. I do not consider the intended assigning of one tenant to the flatmate as proposed is a like for like exchange and the ongoing rent burden across the two would likely be unstainable.
For the above reasons, and with regard to my findings regarding no exemplary damages should be ordered, I make no orders apart from suppression and I encourage the parties to come to a mutually agreeable way forward from here. 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.
Further, 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 part of the evidence given or the name or any identifying particulars of any witness or party not be published.
This situation has required some discussion and I accept there may have been some confusion within the tenant pool of the third person status. The only issue here is that the owner does not want more than two occupants in the premises, and the current or proposed tenants cannot convince the landlord or myself that such a restriction should be amended. The loss of a third contributor to the rent presents a further challenge that is not easily resolved.
The landlord concurred that the tenancy, apart from the issues raised today, is good and I have ordered suppression of all names. An adverse impact on the tenants, who may shortly be looking for a new home, of name publication is considered greater than any public interest in knowing who the tenants are. I have considered the landlord’s submission and also suppress its name.

Order

No orders are made.

Reasons

Both parties attended the hearing, conducted via video conference.
The tenant application sought assignment of one tenant.
The landlord application sought exemplary damages for maximum number of people being exceeded. Assignment
Section 43B Residential Tenancies Act 1986 provides for assignment of a tenancy.
In this instance, one tenant in a fixed-term tenancy wants to leave and assign another as the second tenant.
Of note, s 43B, in part, states: (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms.
The landlord has declined a proposed assignment. It has offered to accept a surrender.
The issue of assignment here is in part linked to the landlord’s application below. I will address that and then conclude on the reasons for no orders. Maximum number
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) Residential Tenancies Act 1986.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A Residential Tenancies Act 1986.
The tenancy agreement specifies that the maximum number of two people may live in the premises during the tenancy. I find no grounds to infer a variation to that condition, or any affirmation took place that might increase that number above the contracted two people.
The tenants have had a third person living there as a flatmate. That is not disputed.
I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
As indicated at the hearing, I do not consider, given the considerations above, and the circumstances of the tenancy overall that any orders for exemplary damages should be made. I make my finding on law so that if the situation is repeated and the landlord makes a similar application, the consideration of s 109(3) at that time may also reflect the clear advice given to the tenants today. Decision
The reality is that the proposed two tenants do not appear to be in a position to pay the full rent. The income from the flatmate has subsidised rent to date and the landlord has asserted, and confirmed, the maximum occupancy must remain at two. I have no grounds to interfere with what is a key term of the tenancy agreement.
It is unfortunate but the tenancy, as established in 2021, has changed and I do not find the landlord should be compelled to accept an assignment in this instance. I do not consider the intended assigning of one tenant to the flatmate as proposed is a like for like exchange and the ongoing rent burden across the two would likely be unstainable.
For the above reasons, and with regard to my findings regarding no exemplary damages should be ordered, I make no orders apart from suppression and I encourage the parties to come to a mutually agreeable way forward from here. 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.
Further, 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 part of the evidence given or the name or any identifying particulars of any witness or party not be published.
This situation has required some discussion and I accept there may have been some confusion within the tenant pool of the third person status. The only issue here is that the owner does not want more than two occupants in the premises, and the current or proposed tenants cannot convince the landlord or myself that such a restriction should be amended. The loss of a third contributor to the rent presents a further challenge that is not easily resolved.
The landlord concurred that the tenancy, apart from the issues raised today, is good and I have ordered suppression of all names. An adverse impact on the tenants, who may shortly be looking for a new home, of name publication is considered greater than any public interest in knowing who the tenants are. I have considered the landlord’s submission and also suppress its name.

Tenancy Tribunal case 4791180 — Exemplary damages

At a glance

Tenancy Tribunal case 4791180 — Exemplary damages

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions