Published tribunal order
Tenancy Tribunal case 4844177 — Rent arrears at 6251 State Highway 2, Netherton, Paeroa 3671
Decided 22 Aug 2024 · Published 22 Aug 2024 · Application 4844177
Landlord favoured
- Rent arrears
Order
- Adriaan Liebenberg must pay Nigel William Cross $25,000.00 immediately, calculated as shown in table below. LandlordTenant Rent arrears$25,000.00 Total award$25,000.00 Total payable by Tenant to Landlord$25,000.00
- The Tenancy Tribunal has jurisdiction to hear the claims.
- The rest of the claims are dismissed.
Reasons
- This matter was part heard and an order issued on 20 June 2024.The tenant was unable to attend that hearing due to technical difficulties and the matter was adjourned to 22 August 2024.
- The tenant was called multiple times on the phone number in the application form, and provided by the tenant on 11 June 2024 in communications with the Tribunal. The tenant failed to answer. The Tribunal also emailed the tenant confirming that the hearing was currently taking place and that the Tribunal was trying to call them on the number provided. There was no reply to the email.
- The order dated 20 June 2024 stated clause 12, that if the tenant failed to attend the hearing the matter will be heard and determined in their absence.
- The landlord attended the hearing by telephone and the hearing continued without the tenant present.
- The tenant was from the premises on 27 June 2024 and the tenancy has ended. The landlord has applied for rent arrears following the end of the tenancy.
- The part order considered the question of whether this was a tenancy and recorded the landlord’s position. The landlord confirmed that this was correct, that he believed that it was a residential tenancy and his position has not changed. The tenant had disputed that this was a tenancy believing that it was part of a commercial lease agreement.
- Section 77 of the RTA relates to the jurisdiction of the Tenancy Tribunal, and confirms that: Section 77 Jurisdiction of Tribunal (1) The Tribunal has, subject to the Limitation Act 2010, jurisdiction to determine in accordance with this Act any dispute that— (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.
- Section 4 of the RTA confirms that the Act applies to “every tenancy for residential purposes except as specifically provided.
- The following provisions of the Residential Tenancies Act 1986, RTA apply when considering if a premises is residential or commercial. Section 2 of the RTA sets out the relevant definitions, Commercial premises means premises that are not residential premises. Residential premises means any premises used or intended for occupation as a place of residence. Section 2(3) states, For the purposes of this act, where any premises that are subject to a legal or equitable lease are used for both commercial and residential purposes, the premises shall be deemed to be residential premises unless it is proved that the premises were let principally for the purposes other than residential purposes.
- Onus of proof Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply. See section 10 Residential tenancies act 1986.
- The tenant was given the opportunity to attend and did not. No request an adjournment, or reason was provided to the Tribunal.
- I find that this was a residential tenancy, and the Tenancy Tribunal has jurisdiction to hear the claims.
How much is owed for rent ?
- The tenancy ended on 27 June 2024. The landlord provided an up to date rent records which prove the amount owing at the end of the tenancy and these rent arrears are ordered.