What was Tenancy Tribunal case 4806580 about?

The tribunal order states: [The tenant/s] must pay Raglan Rentals Limited As Agent For Josh Kersten

How much money was awarded in case 4806580?

Property Damage: $2,000.00 awarded to tenant; Previous Order Application 4806580 D…: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4806580?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4806580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10218195-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4806580 about?

The tribunal order states: [The tenant/s] must pay Raglan Rentals Limited As Agent For Josh Kersten

How much money was awarded in case 4806580?

Property Damage: $2,000.00 awarded to tenant; Previous Order Application 4806580 D…: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4806580?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4806580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10218195-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4806580 — Property damage

Claims and awards in Tenancy Tribunal application 4806580 — net $1,600.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4806580 dated 28/02/2024	$3,600.00		Previous order application 4806580 dated 28/02/2024
Compensation: General damages		$2,000.00	General damages
Total award	$3,600.00	$2,000.00
Net award	$1,600.00
Total payable by Tenant to Landlord	$1,600.00

Order

[The tenant/s] must pay Raglan Rentals Limited As Agent For Josh Kersten $1,600.00 immediately, being the balance owing under the two orders.
This order incorporates the Tribunal order made on 28 February 2024 under application 4806580.

Reasons

Both parties attended the hearing on 12 April 2024.
The matter had been part heard on 28 February 2024. Following that hearing, the Tribunal ordered that the fixed term tenancy would end on 28 February 2024. The tenant was to pay compensation to the landlord of $3,600.00. That payment was not required to be made until such time as the remaining tenant claims had been considered by the Tribunal.
Those claims were considered today.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or 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.” (the emphasis is mine). Tenant claims
A tenant may at any time during the tenancy assign the tenancy with the prior written consent of the landlord.
If a tenant makes a written request for the landlord’s consent to an assignment of the tenancy and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period.
The landlord must not unreasonably withhold their consent to the assignment. The landlord will be taken to have been unreasonably withheld if the withholding is an unlawful act under s.12 RTA ( discrimination) ( see s.43B RTA).
The tenancy agreement entered into by the parties specifically states that the tenant may not sublet the premises.
For reasons that are not relevant to this enquiry, the tenant needed to move from the premises to [City].
On Thursday 4 January 2024 the tenant sent an email to the landlord. The email states in part “As unfortunately I’m going to have to move back to [City]. I haven’t been successful in securing work here so looking to make the move back down on the 3 rd of Feb......Regarding the lease, [Potential tenant] and another guy that works with me are keen to take the lease on if that’s a possibility, if that’s not a possibility , what are the steps for terminating the lease”.
The email was sent to the landlord over the Christmas vacation period. The tenant received a response noting that the request would be considered when the property manager returned from vacation on 15 January 2024.
On or about Friday 12 January 2024, the tenant received a telephone call from the property manager. The manager said that he would discuss the tenant’s request with the owner.
On or about Tuesday 16 January 2024, the landlord told the tenant that the request to assign the premises to the proposed tenants had been declined by the owner.
I must consider two issues, the first is whether the response to the request was made by the landlord within a reasonable period and secondly, whether the landlord unreasonably withheld their consent.
Quite simply, I consider a delay of less than two weeks, given the Christmas vacation and the acknowledgement by the landlord to the tenant that there may be a delay in responding until the property manager returns, is reasonable. The tenant application under s.43B (4) RTA is dismissed.
The second issue is whether the landlord withholding consent to the assignment was reasonable?
Evidence was provided by the tenant of two potential tenant applications. The first from [Potential tenant]. A copy of an email from [Potential tenant] to the landlord dated 15 January 2024 was filed in evidence. The email provides background information on the applicant and records that he would be joined at the tenancy by a fellow employee. [Potential tenant] is a building contractor.
The second applicant had a dog. If successful in her application for the premises, the applicant said that she would house the dog elsewhere.
The landlord said that after receiving notice from the tenant, the premises were advertised. Five applications were received. Some were declined almost immediately, as the credit checks for the applicants indicated that they would have difficulty paying the rent.
One tenant was declined as she had a dog. The prospective tenant made it clear that if successful in her application, she would home the dog elsewhere. The landlord said that in their experience, proposals such as this are often unsuccessful and the dog inevitably ends up staying at the premises. I consider that a potential inability to meet the rent commitment and uncertainty regarding a pet were legitimate reasons for a landlord withholding approval for the assignment.
The application from [Potential tenant] was from someone in similar employment to that of the tenant. The tenants were to be [Potential tenant] and a work colleague.
There was no evidence to suggest that [Potential tenant] and the work colleague may be unable to meet the rent payments.
The landlord expressed a concern about the indication from [Potential tenant] that he may wish to store building supplies at the premises. No evidence was received of the landlord questioning [Potential tenant] about this. The evidence from the tenant was that work tools were to be stored in the garage of the premises.
They key concern raised by the landlord was a concern over the two proposed tenants having flatmates. The owner said that he did not want a “flatting situation”, he wanted a family. I find it hard to reconcile this concern with the arrangement of the existing tenant. [The tenant/s], his brother and two children lived at the premises. There seems to be little apparent difference.
The tenant said that during a telephone conversation with the property manager on 14 February 2024, the property manager said that the landlord was refusing prospective tenants out of spite.
As a matter of law, reasons and conditions for refusing an assignment must relate to the tenancy. Classically, the landlord is entitled to be satisfied that the incoming tenant is responsible, capable of paying the rent and will perform its other obligations under the tenancy agreement and the law.
Reasons that reflect personality or other extraneous factors or are not acceptable. The reasons for refusing [Potential tenant] do not seem to be based on an inability to pay the rent or otherwise perform the tenant obligations, but rather that the proposed tenants were not a family and therefore may not be reliable. I do not consider that factor alone to be an acceptable ground for refusing the application. The landlord has unreasonably withheld consent to the assignment.
A landlord’s consent must be taken to have been unreasonably withheld if the withholding is discriminatory under s.12 RTA. It is a discriminatory act under the Human Rights Act 1993 to discriminate on the grounds of, amongst other things, marital status, family status and employment. I consider that the landlord’s refusal to agree to the assignment of the tenancy on the grounds that the applicant was not a family, amounts to discrimination under the terms of s.12 RTA. A landlord cannot discriminate because an applicant is married, in a de facto relationship or as in this case, single.
In the circumstances as outlined, I consider that the landlord has breached s.43B(6)(a) RTA. A consent unreasonably withheld by the landlord is not, in terms of s.43B RTA, an unlawful act. No exemplary damages are available under that provision.
In Cavanagh v Kainga Ora (2022) NZDC 7003, the District Court said that even where exemplary damages are not or cannot be claimed, the Tribunal, given the broad nature of its jurisdiction, could award general damages to take account of the breach.
I do not think it appropriate for the damages to be the equivalent of any exemplary damages award. The tenant seeks compensation for the rent paid between 3 February 2024 (which was the “termination date” given by the tenant in his notice to the landlord) and 28 February 2024, when the tenant stopped paying rent. The rent for that period amounts to $2,914.00. Doing the best that I can to do justice to the parties, I find that the tenant is entitled to general damages of $2,000.00.
Both parties have applied for name suppression. When the tenant applications are reviewed, I consider that the tenant has been substantially successful in this hearing. Suppression of the tenant name and details is ordered.
The landlord has not been wholly or substantially successful and the landlord application for suppression is dismissed.

Claims and awards in Tenancy Tribunal application 4806580 — net $1,600.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4806580 dated 28/02/2024	$3,600.00		Previous order application 4806580 dated 28/02/2024
Compensation: General damages		$2,000.00	General damages
Total award	$3,600.00	$2,000.00
Net award	$1,600.00
Total payable by Tenant to Landlord	$1,600.00

Order

[The tenant/s] must pay Raglan Rentals Limited As Agent For Josh Kersten $1,600.00 immediately, being the balance owing under the two orders.
This order incorporates the Tribunal order made on 28 February 2024 under application 4806580.

Reasons

Both parties attended the hearing on 12 April 2024.
The matter had been part heard on 28 February 2024. Following that hearing, the Tribunal ordered that the fixed term tenancy would end on 28 February 2024. The tenant was to pay compensation to the landlord of $3,600.00. That payment was not required to be made until such time as the remaining tenant claims had been considered by the Tribunal.
Those claims were considered today.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the tenant must establish that what they are claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or 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.” (the emphasis is mine). Tenant claims
A tenant may at any time during the tenancy assign the tenancy with the prior written consent of the landlord.
If a tenant makes a written request for the landlord’s consent to an assignment of the tenancy and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period.
The landlord must not unreasonably withhold their consent to the assignment. The landlord will be taken to have been unreasonably withheld if the withholding is an unlawful act under s.12 RTA ( discrimination) ( see s.43B RTA).
The tenancy agreement entered into by the parties specifically states that the tenant may not sublet the premises.
For reasons that are not relevant to this enquiry, the tenant needed to move from the premises to [City].
On Thursday 4 January 2024 the tenant sent an email to the landlord. The email states in part “As unfortunately I’m going to have to move back to [City]. I haven’t been successful in securing work here so looking to make the move back down on the 3 rd of Feb......Regarding the lease, [Potential tenant] and another guy that works with me are keen to take the lease on if that’s a possibility, if that’s not a possibility , what are the steps for terminating the lease”.
The email was sent to the landlord over the Christmas vacation period. The tenant received a response noting that the request would be considered when the property manager returned from vacation on 15 January 2024.
On or about Friday 12 January 2024, the tenant received a telephone call from the property manager. The manager said that he would discuss the tenant’s request with the owner.
On or about Tuesday 16 January 2024, the landlord told the tenant that the request to assign the premises to the proposed tenants had been declined by the owner.
I must consider two issues, the first is whether the response to the request was made by the landlord within a reasonable period and secondly, whether the landlord unreasonably withheld their consent.
Quite simply, I consider a delay of less than two weeks, given the Christmas vacation and the acknowledgement by the landlord to the tenant that there may be a delay in responding until the property manager returns, is reasonable. The tenant application under s.43B (4) RTA is dismissed.
The second issue is whether the landlord withholding consent to the assignment was reasonable?
Evidence was provided by the tenant of two potential tenant applications. The first from [Potential tenant]. A copy of an email from [Potential tenant] to the landlord dated 15 January 2024 was filed in evidence. The email provides background information on the applicant and records that he would be joined at the tenancy by a fellow employee. [Potential tenant] is a building contractor.
The second applicant had a dog. If successful in her application for the premises, the applicant said that she would house the dog elsewhere.
The landlord said that after receiving notice from the tenant, the premises were advertised. Five applications were received. Some were declined almost immediately, as the credit checks for the applicants indicated that they would have difficulty paying the rent.
One tenant was declined as she had a dog. The prospective tenant made it clear that if successful in her application, she would home the dog elsewhere. The landlord said that in their experience, proposals such as this are often unsuccessful and the dog inevitably ends up staying at the premises. I consider that a potential inability to meet the rent commitment and uncertainty regarding a pet were legitimate reasons for a landlord withholding approval for the assignment.
The application from [Potential tenant] was from someone in similar employment to that of the tenant. The tenants were to be [Potential tenant] and a work colleague.
There was no evidence to suggest that [Potential tenant] and the work colleague may be unable to meet the rent payments.
The landlord expressed a concern about the indication from [Potential tenant] that he may wish to store building supplies at the premises. No evidence was received of the landlord questioning [Potential tenant] about this. The evidence from the tenant was that work tools were to be stored in the garage of the premises.
They key concern raised by the landlord was a concern over the two proposed tenants having flatmates. The owner said that he did not want a “flatting situation”, he wanted a family. I find it hard to reconcile this concern with the arrangement of the existing tenant. [The tenant/s], his brother and two children lived at the premises. There seems to be little apparent difference.
The tenant said that during a telephone conversation with the property manager on 14 February 2024, the property manager said that the landlord was refusing prospective tenants out of spite.
As a matter of law, reasons and conditions for refusing an assignment must relate to the tenancy. Classically, the landlord is entitled to be satisfied that the incoming tenant is responsible, capable of paying the rent and will perform its other obligations under the tenancy agreement and the law.
Reasons that reflect personality or other extraneous factors or are not acceptable. The reasons for refusing [Potential tenant] do not seem to be based on an inability to pay the rent or otherwise perform the tenant obligations, but rather that the proposed tenants were not a family and therefore may not be reliable. I do not consider that factor alone to be an acceptable ground for refusing the application. The landlord has unreasonably withheld consent to the assignment.
A landlord’s consent must be taken to have been unreasonably withheld if the withholding is discriminatory under s.12 RTA. It is a discriminatory act under the Human Rights Act 1993 to discriminate on the grounds of, amongst other things, marital status, family status and employment. I consider that the landlord’s refusal to agree to the assignment of the tenancy on the grounds that the applicant was not a family, amounts to discrimination under the terms of s.12 RTA. A landlord cannot discriminate because an applicant is married, in a de facto relationship or as in this case, single.
In the circumstances as outlined, I consider that the landlord has breached s.43B(6)(a) RTA. A consent unreasonably withheld by the landlord is not, in terms of s.43B RTA, an unlawful act. No exemplary damages are available under that provision.
In Cavanagh v Kainga Ora (2022) NZDC 7003, the District Court said that even where exemplary damages are not or cannot be claimed, the Tribunal, given the broad nature of its jurisdiction, could award general damages to take account of the breach.
I do not think it appropriate for the damages to be the equivalent of any exemplary damages award. The tenant seeks compensation for the rent paid between 3 February 2024 (which was the “termination date” given by the tenant in his notice to the landlord) and 28 February 2024, when the tenant stopped paying rent. The rent for that period amounts to $2,914.00. Doing the best that I can to do justice to the parties, I find that the tenant is entitled to general damages of $2,000.00.
Both parties have applied for name suppression. When the tenant applications are reviewed, I consider that the tenant has been substantially successful in this hearing. Suppression of the tenant name and details is ordered.
The landlord has not been wholly or substantially successful and the landlord application for suppression is dismissed.

Tenancy Tribunal case 4806580 — Property damage

At a glance

Tenancy Tribunal case 4806580 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions