What was the outcome of Tenancy Tribunal case 4793757?

The tribunal order states: Charith Neranja Ruwanpathirana and Premitha Silva Pothupitiyage must pay

How much money was awarded in case 4793757?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,011.43 awarded to landlord

What type of tenancy dispute was case 4793757?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4793757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10012164-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4793757?

The tribunal order states: Charith Neranja Ruwanpathirana and Premitha Silva Pothupitiyage must pay

How much money was awarded in case 4793757?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $1,011.43 awarded to landlord

What type of tenancy dispute was case 4793757?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4793757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10012164-Tenancy_Tribunal_Order.pdf.

201 Carlyle Street, Napier South, Napier 4110 Tenancy Tribunal Case 4793757 — Rent arrears

Claims and awards in Tenancy Tribunal application 4793757 — net $1,031.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 26 February 2024	$1,011.43	Rent arrears to 26 February 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,031.87
Total payable by Tenant to Landlord	$1,031.87

Order

Charith Neranja Ruwanpathirana and Premitha Silva Pothupitiyage must pay The Property Management Team Limited $1,031.87 immediately.
The landlord’s application for termination is dismissed.

Reasons

The landlord attended the hearing as did Charith Neranja Ruwanpathirana. The other tenant did not answer her telephone when called. I gave Charith Neranja Ruwanpathirana opportunity to try and telephone the other tenant from his own telephone to see if she could be contacted but he could not get her to answer the telephone either.
The hearing proceeded in her absence as I am satisfied she has been served.
The tenancy began on Monday 1 October 2018 with the owners originally as the landlords.
The Property Management Team Limited took over management duties on 19 August 2023 and the bond was transferred into their name.
The Property Management Team Limited have collected rent and issued all notices following their appointment. They have day to day management responsibility. The Property Management Team Limited says that they are instructed on behalf of the owners named in the tenancy agreement and that the owners are aware of the application being heard today and that The Property Management Team Limited are making the application with their knowledge. Given this extensive involvement of The Property Management Team Limited I am satisfied that they may make this application as the ‘landlord’.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.

Should the tenancy be terminated?

The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, 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).
It is important to establish when rent falls due when relying on this section of the RTA because accuracy in relation to that is vital to ensure that any notices served are valid. In the circumstances of this case, on the evidence presented, after very careful consideration I am not satisfied that the landlord has discharged the necessary burden of proof to satisfy me that the notices relied upon are valid.
This is because the position here is somewhat irregular. The tenancy originally began on Monday 1 October 2018. When The Property Management Team Limited took over the tenancy it wrote to the tenant advising them that rent would now be payable to them on a Thursday. The reason for this, the landlord says, is that the tenant had paid rent up to that date.
The rent summary (as produced by The Property Management Team Limited) runs from Thursday to Wednesday.
There is no evidence that the tenant expressly consented to the rent being payable on a Thursday instead of a Monday as per the original agreement. This means that there is a mismatch between the express contractual position and the rent summary that has been provided. However, I do see that the tenants have begun to make payments quite regularly on a Thursday as instructed.
Typically, if a property manager (or an entirely new landlord) takes on a tenancy in the middle of a rental period week they will apportion the amount payable to them for that rental period week to reflect this. Here this was not done.
If the tenancy agreement has been varied (as the landlord says is the case) so that the rent is payable on a Thursday then all three written notices relied upon by the landlord are wrong. This is because they refer to rent being due on dates falling on a Wednesday (notice 1) a Monday (notice 2) and a Monday (notice 3). If the tenancy agreement has not been varied (so rent still remains payable on a Monday) then the first notice still remains incorrect because it refers to a date falling on a Wednesday. These incorrect dates are enough for the application for termination to fail.
I also observe that the first written notice is dated 4 December 2023. It refers to the rent (incorrectly on any approach) being due on Wednesday 29 November. I note that there are not 5 working days between 29 November and 4 December (see Residential Tenancies Act 1986, section 2 – weekends are not working days). This is a further flaw with the first notice.
The requirements in s 55(1)(aa), RTA are strict. I find the landlord has not served notices on the tenant as required in the Residential Tenancies Act 1986. The grounds for termination under s 55(1)(aa) have not been met. The landlord’s application to terminate the tenancy is dismissed.
I am satisfied however that there are arrears of $1,011.43. The landlord has applied for rent arrears and has provided rent records which prove the amount owing. The tenant says that he has paid his share, because he and his wife have agreed to split the rent as they are now separated. However, both tenants are named in the tenancy agreement and both signed it. As explained at the hearing the general principle is that tenants are jointly liable for breaches by other tenants (Harrison v Shields (DC Dunedin, MP435/00, 2 September 2002, Judge MacAskill)).
The concept of joint liability is entrenched in the common law. Joint liability means that each party under a joint obligation is liable for breaches of the obligation by the other parties. I accept that residential co-tenants often of not know that they are "joint tenants" and, even if they do know, they usually do not understand the legal implications of joint liability in the absence of legal advice. This does not change the legal position. Here there is a joint tenancy at common law, and both tenants owe joint and several obligations to the landlord.
If the tenants have a dispute between themselves as to who actually owes the debt then this is a matter they can pursue between themselves in a different jurisdiction (often this is the Disputes Tribunal).
I have not awarded the landlord the bond for the proven arrears because they advised at the hearing if the tenancy was not terminated they wanted the bond to remain at the Bond Centre.
Both parties asked for name suppression. I decline to order this (s 95A, RTA). The landlord’s application for termination was flawed from the outset and the tenant owes arrears that are not insignificant.
I have awarded the landlord the filing fee because they have made recovery of the arrears.

Claims and awards in Tenancy Tribunal application 4793757 — net $1,031.87 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 26 February 2024	$1,011.43	Rent arrears to 26 February 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,031.87
Total payable by Tenant to Landlord	$1,031.87

Order

Charith Neranja Ruwanpathirana and Premitha Silva Pothupitiyage must pay The Property Management Team Limited $1,031.87 immediately.
The landlord’s application for termination is dismissed.

Reasons

The landlord attended the hearing as did Charith Neranja Ruwanpathirana. The other tenant did not answer her telephone when called. I gave Charith Neranja Ruwanpathirana opportunity to try and telephone the other tenant from his own telephone to see if she could be contacted but he could not get her to answer the telephone either.
The hearing proceeded in her absence as I am satisfied she has been served.
The tenancy began on Monday 1 October 2018 with the owners originally as the landlords.
The Property Management Team Limited took over management duties on 19 August 2023 and the bond was transferred into their name.
The Property Management Team Limited have collected rent and issued all notices following their appointment. They have day to day management responsibility. The Property Management Team Limited says that they are instructed on behalf of the owners named in the tenancy agreement and that the owners are aware of the application being heard today and that The Property Management Team Limited are making the application with their knowledge. Given this extensive involvement of The Property Management Team Limited I am satisfied that they may make this application as the ‘landlord’.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.

Should the tenancy be terminated?

The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, 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).
It is important to establish when rent falls due when relying on this section of the RTA because accuracy in relation to that is vital to ensure that any notices served are valid. In the circumstances of this case, on the evidence presented, after very careful consideration I am not satisfied that the landlord has discharged the necessary burden of proof to satisfy me that the notices relied upon are valid.
This is because the position here is somewhat irregular. The tenancy originally began on Monday 1 October 2018. When The Property Management Team Limited took over the tenancy it wrote to the tenant advising them that rent would now be payable to them on a Thursday. The reason for this, the landlord says, is that the tenant had paid rent up to that date.
The rent summary (as produced by The Property Management Team Limited) runs from Thursday to Wednesday.
There is no evidence that the tenant expressly consented to the rent being payable on a Thursday instead of a Monday as per the original agreement. This means that there is a mismatch between the express contractual position and the rent summary that has been provided. However, I do see that the tenants have begun to make payments quite regularly on a Thursday as instructed.
Typically, if a property manager (or an entirely new landlord) takes on a tenancy in the middle of a rental period week they will apportion the amount payable to them for that rental period week to reflect this. Here this was not done.
If the tenancy agreement has been varied (as the landlord says is the case) so that the rent is payable on a Thursday then all three written notices relied upon by the landlord are wrong. This is because they refer to rent being due on dates falling on a Wednesday (notice 1) a Monday (notice 2) and a Monday (notice 3). If the tenancy agreement has not been varied (so rent still remains payable on a Monday) then the first notice still remains incorrect because it refers to a date falling on a Wednesday. These incorrect dates are enough for the application for termination to fail.
I also observe that the first written notice is dated 4 December 2023. It refers to the rent (incorrectly on any approach) being due on Wednesday 29 November. I note that there are not 5 working days between 29 November and 4 December (see Residential Tenancies Act 1986, section 2 – weekends are not working days). This is a further flaw with the first notice.
The requirements in s 55(1)(aa), RTA are strict. I find the landlord has not served notices on the tenant as required in the Residential Tenancies Act 1986. The grounds for termination under s 55(1)(aa) have not been met. The landlord’s application to terminate the tenancy is dismissed.
I am satisfied however that there are arrears of $1,011.43. The landlord has applied for rent arrears and has provided rent records which prove the amount owing. The tenant says that he has paid his share, because he and his wife have agreed to split the rent as they are now separated. However, both tenants are named in the tenancy agreement and both signed it. As explained at the hearing the general principle is that tenants are jointly liable for breaches by other tenants (Harrison v Shields (DC Dunedin, MP435/00, 2 September 2002, Judge MacAskill)).
The concept of joint liability is entrenched in the common law. Joint liability means that each party under a joint obligation is liable for breaches of the obligation by the other parties. I accept that residential co-tenants often of not know that they are "joint tenants" and, even if they do know, they usually do not understand the legal implications of joint liability in the absence of legal advice. This does not change the legal position. Here there is a joint tenancy at common law, and both tenants owe joint and several obligations to the landlord.
If the tenants have a dispute between themselves as to who actually owes the debt then this is a matter they can pursue between themselves in a different jurisdiction (often this is the Disputes Tribunal).
I have not awarded the landlord the bond for the proven arrears because they advised at the hearing if the tenancy was not terminated they wanted the bond to remain at the Bond Centre.
Both parties asked for name suppression. I decline to order this (s 95A, RTA). The landlord’s application for termination was flawed from the outset and the tenant owes arrears that are not insignificant.
I have awarded the landlord the filing fee because they have made recovery of the arrears.

Tenancy Tribunal case 4793757 — Rent arrears at 201 Carlyle Street, Napier South, Napier 4110

At a glance

Tenancy Tribunal case 4793757 — Rent arrears at 201 Carlyle Street, Napier South, Napier 4110

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions