What was Tenancy Tribunal case 4811399 about?

The tribunal order states: JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED

How much money was awarded in case 4811399?

Advertising Fees: $218.50 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $5,200.00 awarded to landlord

What type of tenancy dispute was case 4811399?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4811399?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10164382-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4811399 about?

The tribunal order states: JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED

How much money was awarded in case 4811399?

Advertising Fees: $218.50 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Arrears: $5,200.00 awarded to landlord

What type of tenancy dispute was case 4811399?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4811399?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10164382-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4811399 — Rent arrears

Claims and awards in Tenancy Tribunal application 4811399 — net $5,438.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18/2/2024	$5,200.00	Rent arrears to 18/2/2024
Advertising fees	$218.50	Advertising fees
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,438.94
Total payable by Tenant to Landlord	$5,438.94

Order

JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED ETEUATI JACKSON, RILEY JAMES DAWSON and JAMIE ISAIA SPAIN must pay [The landlord/s] $5,438.94 immediately, calculated as shown in table below:
The application by JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED ETEUATI JACKSON, RILEY JAMES DAWSON and JAMIE ISAIA SPAIN for reduced of the term of their fixed term tenancy is dismissed.
The application by the landlord for exemplary damages and further compensation fails.

Reasons

All parties attended the hearing.
The tenants seek a reduction of the term of their fixed term tenancy due to end on 31/12/2024.
The landlord has filed a cross application for rent arrears, compensation, and exemplary damages for abandonment.
The landlord and tenant are parties to a fixed term tenancy from 1/1/2024 to 31/12/2024 at a weekly rent of $1,040.00. Tenant claim

Should the term of the tenancy be reduced?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a Court or Tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce a fixed term. In particular the tenant will need to establish: a. There has been a change in their circumstances, b. The change was unforeseen, c. The unforeseen change will result in severe hardship to them if the term is not reduced, d. The severe hardship they will suffer if the term is not reduced exceeds the hardship the landlord will suffer if the term is reduced.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.
In Bond v Tang Invercargill TT09/583IN the Tribunal discussed that section 66 was used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed-term agreements can create hardship when circumstances unexpectedly turn against them and landlords who have financial expectations arising from the same bargain.
Unfortunate as it may be for the tenant, I find the evidence does not establish there has been an unforeseen change in their circumstances.
The tenant signed the fixed term tenancy on 8/9/2023, at which time not all of the five tenants had confirmed employment in Dunedin for the 2024 year.
The fact they were unable to secure employment was therefore not unforeseen.
Two tenants having their respective drivers’ licences suspended resulting in difficulties in obtaining employment is not an unforeseen change in circumstances.
Nor sadly is the illness of an elderly relative unforeseen.
While cancellation of a course may be unforeseen, the tenant this happened to still made the choice to reside in Dunedin.
The landlord did not want the fixed term reduced.
However, the landlord has mitigated the loss of the parties by re-letting the premises as at 19/2/2024.
As I have determined there has been no unforeseen change in the tenant’s circumstances, I do not need to consider the second part of the test; that is whether the severe hardship the tenant would suffer if the term of the tenancy is not reduced would be greater than the hardship the landlord would suffer if the term were reduced.
The claim by the tenant for a reduction of the fixed term fails. Landlord claim

Are there rent arrears owing?

The landlord claimed rent arrears of $5,200.00 to 18/2/2024.
As the premises were re-let on 19/2/2024 and the tenant had already paid two weeks rent, I am satisfied that the evidence establishes the amount of rent owing.

Is the landlord entitled to compensation?

The landlord sought compensation for the work involved in re-letting the premises as follows: a. $218.50 advertising b. $90.00 landlord fee for work undertaken.
Under section 44A a landlord who, among other matters, consents to a tenant parting with possession of a tenancy is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord.
The landlord must provide an itemised account of the expenses to the tenant.
I am satisfied from the evidence that the landlord provided via email an itemised account of the advertising fees to the tenant, and the advertising costs sought are reasonable.
However, I could find no evidence that the landlord included her costs for the work involved in the re-letting and this claim fails.

Did the tenant abandon the premises?

By not taking possession of the premises and intentionally failing to pay rent after agreeing to do so the landlord claims the tenant abandoned the premises.
A tenancy is abandoned where the tenant leaves the premises without reasonable excuse and fails to notify the landlord, not intending to return or to meet their obligations.
A tenant commits an unlawful act if they abandon the premises when the rent is in arrears. Exemplary damages may be awarded up to a maximum of $1,500.00. See section 61(5) and Schedule 1A Residential Tenancies Act 1986.
The landlord submitted that the tenant knew for three months that they did not intend to move into the premises but failed to let her know until 5/12/2023.
Further the landlord believed that the tenant had agreed to continue paying rent while new tenants were found to take over the tenancy and was very unhappy when no rent was forthcoming.
In response the tenant submitted they had not told the landlord that three of them were unable to take the tenancy because the remaining two tenants were trying to find other flatmates.
The tenant confirmed they had agreed to pay rent but could not afford to do so after some of them had signed a new tenancy agreement for different premises.
Further the tenant suggested they were very confused by the emails received from the landlord about what they should do.
I am not persuaded by the evidence that the tenant abandoned the premises without a reasonable excuse, albeit their late notification to the landlord and failure to continue paying rent did not help the situation.
Nor do I consider the tone of the emails from the landlord were particularly helpful in the circumstances.
Although they were unsuccessful two of the tenants took steps to find other flatmates.
I find the tenant did not abandon the premises or commit an unlawful act.
Exemplary damages are not available to the landlord.
The order has been made against all five tenants because they are jointly and severally liable as between themselves and the landlord for the amount owing.
If the tenants have a dispute amongst themselves as to who is liable for any of the amount owing then they can pursue this in the Disputes Tribunal because it is a tenant/tenant issue.
As the landlord has been largely successful with the claim, I have awarded the filing fee.
Suppression is granted to the landlord pursuant to section 95A because the claim was largely successful.
Suppression is not available to the tenant.

Claims and awards in Tenancy Tribunal application 4811399 — net $5,438.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18/2/2024	$5,200.00	Rent arrears to 18/2/2024
Advertising fees	$218.50	Advertising fees
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,438.94
Total payable by Tenant to Landlord	$5,438.94

Order

JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED ETEUATI JACKSON, RILEY JAMES DAWSON and JAMIE ISAIA SPAIN must pay [The landlord/s] $5,438.94 immediately, calculated as shown in table below:
The application by JONSON MICHAEL RUIHI TAHANA, RILEY BRAD NICOL, JOSIAH STEED ETEUATI JACKSON, RILEY JAMES DAWSON and JAMIE ISAIA SPAIN for reduced of the term of their fixed term tenancy is dismissed.
The application by the landlord for exemplary damages and further compensation fails.

Reasons

All parties attended the hearing.
The tenants seek a reduction of the term of their fixed term tenancy due to end on 31/12/2024.
The landlord has filed a cross application for rent arrears, compensation, and exemplary damages for abandonment.
The landlord and tenant are parties to a fixed term tenancy from 1/1/2024 to 31/12/2024 at a weekly rent of $1,040.00. Tenant claim

Should the term of the tenancy be reduced?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a Court or Tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce a fixed term. In particular the tenant will need to establish: a. There has been a change in their circumstances, b. The change was unforeseen, c. The unforeseen change will result in severe hardship to them if the term is not reduced, d. The severe hardship they will suffer if the term is not reduced exceeds the hardship the landlord will suffer if the term is reduced.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.
In Bond v Tang Invercargill TT09/583IN the Tribunal discussed that section 66 was used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed-term agreements can create hardship when circumstances unexpectedly turn against them and landlords who have financial expectations arising from the same bargain.
Unfortunate as it may be for the tenant, I find the evidence does not establish there has been an unforeseen change in their circumstances.
The tenant signed the fixed term tenancy on 8/9/2023, at which time not all of the five tenants had confirmed employment in Dunedin for the 2024 year.
The fact they were unable to secure employment was therefore not unforeseen.
Two tenants having their respective drivers’ licences suspended resulting in difficulties in obtaining employment is not an unforeseen change in circumstances.
Nor sadly is the illness of an elderly relative unforeseen.
While cancellation of a course may be unforeseen, the tenant this happened to still made the choice to reside in Dunedin.
The landlord did not want the fixed term reduced.
However, the landlord has mitigated the loss of the parties by re-letting the premises as at 19/2/2024.
As I have determined there has been no unforeseen change in the tenant’s circumstances, I do not need to consider the second part of the test; that is whether the severe hardship the tenant would suffer if the term of the tenancy is not reduced would be greater than the hardship the landlord would suffer if the term were reduced.
The claim by the tenant for a reduction of the fixed term fails. Landlord claim

Are there rent arrears owing?

The landlord claimed rent arrears of $5,200.00 to 18/2/2024.
As the premises were re-let on 19/2/2024 and the tenant had already paid two weeks rent, I am satisfied that the evidence establishes the amount of rent owing.

Is the landlord entitled to compensation?

The landlord sought compensation for the work involved in re-letting the premises as follows: a. $218.50 advertising b. $90.00 landlord fee for work undertaken.
Under section 44A a landlord who, among other matters, consents to a tenant parting with possession of a tenancy is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord.
The landlord must provide an itemised account of the expenses to the tenant.
I am satisfied from the evidence that the landlord provided via email an itemised account of the advertising fees to the tenant, and the advertising costs sought are reasonable.
However, I could find no evidence that the landlord included her costs for the work involved in the re-letting and this claim fails.

Did the tenant abandon the premises?

By not taking possession of the premises and intentionally failing to pay rent after agreeing to do so the landlord claims the tenant abandoned the premises.
A tenancy is abandoned where the tenant leaves the premises without reasonable excuse and fails to notify the landlord, not intending to return or to meet their obligations.
A tenant commits an unlawful act if they abandon the premises when the rent is in arrears. Exemplary damages may be awarded up to a maximum of $1,500.00. See section 61(5) and Schedule 1A Residential Tenancies Act 1986.
The landlord submitted that the tenant knew for three months that they did not intend to move into the premises but failed to let her know until 5/12/2023.
Further the landlord believed that the tenant had agreed to continue paying rent while new tenants were found to take over the tenancy and was very unhappy when no rent was forthcoming.
In response the tenant submitted they had not told the landlord that three of them were unable to take the tenancy because the remaining two tenants were trying to find other flatmates.
The tenant confirmed they had agreed to pay rent but could not afford to do so after some of them had signed a new tenancy agreement for different premises.
Further the tenant suggested they were very confused by the emails received from the landlord about what they should do.
I am not persuaded by the evidence that the tenant abandoned the premises without a reasonable excuse, albeit their late notification to the landlord and failure to continue paying rent did not help the situation.
Nor do I consider the tone of the emails from the landlord were particularly helpful in the circumstances.
Although they were unsuccessful two of the tenants took steps to find other flatmates.
I find the tenant did not abandon the premises or commit an unlawful act.
Exemplary damages are not available to the landlord.
The order has been made against all five tenants because they are jointly and severally liable as between themselves and the landlord for the amount owing.
If the tenants have a dispute amongst themselves as to who is liable for any of the amount owing then they can pursue this in the Disputes Tribunal because it is a tenant/tenant issue.
As the landlord has been largely successful with the claim, I have awarded the filing fee.
Suppression is granted to the landlord pursuant to section 95A because the claim was largely successful.
Suppression is not available to the tenant.

Tenancy Tribunal case 4811399 — Rent arrears

At a glance

Tenancy Tribunal case 4811399 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Should the term of the tenancy be reduced?

Are there rent arrears owing?

Is the landlord entitled to compensation?

Did the tenant abandon the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the term of the tenancy be reduced?

Are there rent arrears owing?

Is the landlord entitled to compensation?

Did the tenant abandon the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions