What was Tenancy Tribunal case 4829757 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4829757?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4829757?

The dispute type was not classified.

Where can I read the official tribunal order for case 4829757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10190303-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4829757 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4829757?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4829757?

The dispute type was not classified.

Where can I read the official tribunal order for case 4829757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10190303-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4829757 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord name and identifying details.
The application to reduce the term of the fixed-term tenancy of Katia Angelique Beck and David Alexis at [Tenancy address suppressed] is dismissed.

Reasons

Both parties attended the hearing with Ms Beck appearing for both tenants. The landlord attended by teleconference.
The tenant has applied for reduction of the fixed-term tenancy due to end on 28 June 2024.
The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).

Has there been an unforeseen change in the tenant's circumstances?

The tenancy started on 1 July 2023 and is to end on 28 June 2024. The tenants are a couple who live in New Caledonia. They decided to visit New Zealand for one year so that they could improve their English. In particular, they enrolled their young child in a [City] bi-lingual school so that she could learn to speak English correctly. Before coming to NZ, they were required to obtain the appropriate visas. Before enrolling their child in school, it was also necessary for them to have a residential address in NZ.
The tenants claim that the visa advice they received from an Immigration Consultant they engaged before coming to NZ was incorrect, and in reliance on that advice they entered the fixed term tenancy. However, Mr Alexis was only issued a 9-month visa and his application for an extension was rejected and he had to leave NZ by 3 April 2024. Therefore, the tenants wish to end the tenancy before the fixed term ends, on the basis that the incorrect visa advice they received is an unforeseen change in their circumstances. Mr Alexis has had to leave the country and will need to rent a property in New Caledonia. They claim it will cause them serious hardship if they have to pay for 2 rental properties in NZ and in New Caledonia. Background facts
The timeline of events is as follows: a. Early February 2023—the tenants met an Immigration Adviser about their plans and the Adviser explained the visa process; b. 13 February 2023—the Adviser sent an email summarising the key points discussed: i. their child would be eligible for a student visa; one of the parents would be eligible for a guardian visa and the second parent would be eligible for a 12-month visitor visa; ii. Applying for the visitor visa in advance is preferable to multiple entries and exits which saves on travel costs; iii. The letter stated: “These recommendations are based solely on the information provided during this interview. We accept no responsibility for any visa rejection based on or despite our recommendations. If you choose to engage our services, we can only assist with your visa application once our support contract is signed and returned.” c. April 2023—the visa application process was started; d. May 2023—the tenants began looking for a property; Their friend in [City] looked at this property for them; e. 6-8 May 2023—The tenants exchanged emails with the landlord confirming that they would like to rent the property with some furnishings and chattels provided by the landlord. They were also intending to bring their dog with them to NZ, and it was agreed that they could keep their dog at the property. The landlord also advised that he would like a tenant for longer than a year if possible. The tenants confirmed that they could only stay 1 year because they only had a 12-month visa; f. 22 May 2023---the landlord prepared and signed the fixed term tenancy agreement and sent it to the tenants for signing; g. 25 May 2023---the tenants countersigned the fixed term tenancy agreement and forwarded it to the landlord on or about 6 June 2023. This was done before any visas were issued; h. 15 June 2023—The Immigration adviser was not sure if the visa for Mr Alexis would succeed saying in an email: “ For David I am fighting, but I am not sure if I will succeed. If I cannot get his visa extended for a year, I will reapply in December, allowing him to stay without returning to New Caledonia”; i. 22 June 2023—The Immigration Adviser emailed the tenants confirming 12-month visas had been issued for Ms Beck and their child. In relation to Mr Alexis she said: “I have just obtained a change in his visa duration to 9 months with the possibility of requesting an extension, which I believe should not pose any difficulty...”; j. 23 June 2023—Mr Alexis was issued with a 9-month visa. The Immigration Adviser stated: “As a reminder, we will need to apply for a visa extension before its expiration...” k. 26 January 2023—A new Immigration Adviser confirmed that Mr Alexis would be unlikely to receive an extension saying: “...David’s situation is unusual. Typically, visitor visas can be extended up to 9 months, with a possible additional 3-month extension in exceptional cases.....Unfortunately, David’s situation does not fit any of the aforementioned exemptions, thereby reducing his chances of obtaining a new 3-month visitor visa...”
Ms Beck claims that she and her husband were assured that all three family members would be able to obtain visas for the duration of 12 months and their adviser was confident of this. However, sometime after making the applications they were advised that Mr Alexis was only eligible for a visa of less than 12 months. It is not clear on the evidence whether they received this indication before or after they signed the tenancy agreement. Ms Beck says they were given 2 options: a. He could either apply for a 6-month visa; then he would need to leave NZ (briefly) and apply for a further 6-month visa, which would likely be granted; or b. Apply for a 9-month visa; then apply for a 3-month extension without having to leave the country, which would also likely be granted.
They chose the 9-month visa option so that Mr Alexis need not leave the country. Unfortunately, once the 9-month visa expired, Immigration NZ would not extend the visa for a further 3 months and Mr Alexis was required to leave the country by 3 April 2024. Ms Beck says that a new Immigration Consultant advised that the previous advice given about eligibility for a 3-month extension was incorrect. It seems that they should have opted for a 6-month visa which could have been extended for a further 6 months provided Mr Alexis left the country in between those two periods.
The issue for me to decide is whether the incorrect visa advice was given and whether it is an “unforeseen change in circumstances”. I find that it is not, for the following reasons: a. First, there is no clear evidence to confirm that the original visa advice was incorrect and/or whether the tenants chose the 9-month visa option for Mr Alexis without understanding or appreciating a risk that the extension would not be granted; b. Regardless of whether the visa advice was incorrect or not, the tenants decided to sign and commit to a fixed term tenancy before any of the visas were granted. In that regard, I find that they “ran the risk” that a visa might not be granted or might not be granted for the term they wanted. If you “run a risk” then you cannot argue that the outcome is unforeseen; c. In this case, I find there was no guarantee that the visa would be granted. The Adviser’s initial advice letter also alerts the tenants to this possibility when it states that they will not be responsible for any “visa rejection.”
In summary, I find that the tenants have not established an unforeseen change in circumstances, and their application may be dismissed on that basis. However, even if I am wrong, I find that the tenants have also not established severe hardship nor that any severe hardship they might suffer would be greater than the landlord’s hardship. Would the tenants suffer severe hardship greater than the landlord’s hardship?
The tenants claim that they will suffer severe hardship if the term of the tenancy is not reduced because they must now find a property to rent in New Caledonia for Mr Alexis and they cannot afford to rent 2 properties.
The landlord claims that he will also suffer financial hardship if the term of the tenancy is reduced and it will be worse for him than the tenants.
Neither party had available for the hearing any financial records to confirm their financial positions and the only evidence was their oral evidence.
Ms Beck advised as follows: a. The tenants own a home in New Caledonia which has been rented out for 2 years. This is because they intended to spend one year in New Zealand and a year elsewhere overseas. Ms Beck said that they will not be able to travel elsewhere if they have 2 rents to pay. The rent they receive on this property covers their mortgage/bank loans; b. They have savings, although she could not confirm how much. She says this is earmarked for “other events;” c. Mr Alexis owns, along with others, an IT company with approximately 10 employees. He earns income of approximately NZD$12,000/month; d. Ms Beck does not work. She is a nurse but would have to renew her practice certificate to be able to work; e. Mr Alexis left NZ with their child before his visa expired on 3 April 2024 and has been staying with friends until now. Ms Beck is leaving NZ on 13 April 2024 and they will look for a rental property in New Caledonia. She says that she and their child will likely not return to NZ despite having visas until the end of June 2024; f. At this stage, they have not rented a second property.
The landlord explained as follows: a. The rental property is the only property he owns through a trust. He spent money to renovate the property in late 2019; b. The landlord had no work during the Covid lockdown and 2 years following. As a result, the landlord could no longer afford to live at the property. The family moved out and the property was rented for income; c. The landlord lived in a bus for 2 years and his family stayed with friends. d. The financial impact on him was huge as he was unable to find work; e. The landlord is single and now lives in Australia. He has taken employment managing a cold-store in a factory and is re-training for mining work. He earns approximately AUD$750/week. He rents a small apartment for AUD$250/week; f. The rent received on this property does not cover all the property expenses including a large mortgage, rates and insurances. He says his mortgage repayments are $8,000/month; g. He has access to a trust fund of $10,000, earmarked for maintenance and repairs that may arise regarding the rental property owned by the trust.
The landlord also commented that he believes the tenants are in a privileged position compared with his situation. The rental property is at the higher end of the market for which the tenants pay rent of $1300/week. He says that their decision to travel to NZ for a year to learn English and to bring their dog with them demonstrates their privilege as this would have been an expensive exercise. He also says that ending the fixed term tenancy early would punish him unfairly in respect of the tenants inability to navigate international visa difficulties.
I am satisfied after hearing from both parties that any hardship suffered by the tenants from having to rent two properties will likely not be severe and will be relatively short-lived because the tenancy ends in just over 2 months. Ms Beck’s evidence does not suggest “severe hardship” but rather that the tenants will have to reprioritise spending in the short term, and they may not be able to proceed with further travel plans if renting 2 properties in NZ and New Caledonia.
I find that the landlord, on the other hand, is in a more difficult financial position, and ending the tenancy early would cause him greater hardship.
For all those reasons, the tenant’s application is dismissed. Suppression
While not discussed at the hearing, I find it appropriate to grant the landlord suppression of his name and identifying details because publishing his name and the information concerning his personal financial situation is not in the public interest, and because he has successfully defended the application. Section 95A(4) RTA states that: 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.

Tenancy Tribunal case 4829757 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4829757 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Has there been an unforeseen change in the tenant's circumstances?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Has there been an unforeseen change in the tenant's circumstances?

Topics & place

Residential Tenancies Act sections

Frequently asked questions