What was Tenancy Tribunal case 4856260 about?

The tribunal order states: The tenancy of [The tenant/s] at 19 Balloch Street, Fairfield, Hamilton 3214 is

How much money was awarded in case 4856260?

Rent Arrears: $2,188.00 awarded to landlord

What type of tenancy dispute was case 4856260?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4856260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10515115-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4856260 about?

The tribunal order states: The tenancy of [The tenant/s] at 19 Balloch Street, Fairfield, Hamilton 3214 is

How much money was awarded in case 4856260?

Rent Arrears: $2,188.00 awarded to landlord

What type of tenancy dispute was case 4856260?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4856260?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10515115-Tribunal_Order_Redacted.pdf.

19 Balloch Street, Fairfield, Hamilton 3214 Tenancy Tribunal Case 4856260 — Rent arrears

Claims and awards in Tenancy Tribunal application 4856260 — net $2,188.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 25 June 2024	$2,188.00	Rent arrears to 25 June 2024
Net award	$2,188.00
Total payable by Tenant to Landlord	$2,188.00

Order

The tenancy of [The tenant/s] at 19 Balloch Street, Fairfield, Hamilton 3214 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, immediately.
[The tenant/s] must pay Kāinga Ora–Homes And Communities $2,188.00 immediately, calculated as shown in the table below:

Reasons

Ms Thompson – Wise appeared for the landlord. There was no appearance by the tenant.
The landlord seeks termination of the tenancy for breach of the tenant’s obligations and rent arrears.
The tenancy agreement was entered on 09 August 2017 and is periodic.
The rent summary shows that in early February 2024, the tenant ceased making rent payments. Later that month, the tenant advised the landlord of their incarceration. The tenant also informed the landlord that they envisaged their predicament to be temporary, seeking bail to return to the property on or about 06 March 2024. On or about 06 March 2024, the landlord was advised that the tenant was next due to appear on 01 May 2024 and would remain in custody.
Thereafter, the landlord sought to persuade the tenant that it would be in their best interests, due to accruing rent arrears and other issues concerning the continued use of the property by others, to bring the tenancy to an end. The tenant refused to accept the landlord’s opinion, clearly hoping to use the property as the foundation for bail or place of residence following eventual release.
Unable to resolve the matter on 09 April 2024, the landlord filed an application for termination of the tenancy under section 56(1) of the Act and rent arrears. The application has not been brought on the fact that the tenant, at the material time, was over twenty-six weeks in arrears but on the basis that the tenant had breached a term of the agreement by failing to live at the property.
The application was listed for hearing on 10 May 2024. On 09 May 2024, the Tribunal was advised that the tenant was unable to attend the hearing by telephone on the scheduled date. The tenant requested an adjourned and the matter was adjourned to 27 May 2024.
The Tribunal was then advised that the tenant’s custodial status had changed from remand to a sentenced prisoner. The tenant advised the Tribunal that they would be released and able to attend a face-to-face hearing after 12 June 2024, whereafter the matter was moved to 25 June 2024. On 07 June 2024, the Tribunal was advised that the tenant although the sentence end date had been reached, they remained in custody on other matters but would be seeking bail on 24 June 2024 and hoped to appear in person on 25 June 2024. Its appears that the tenant was not released as anticipated. The landlord states they have been advised that the tenant is now the subject of another short sentence of imprisonment with a release date in September 2024.
The issue in this case is whether there has been breach of the agreement and if so, whether it would in inequitable to refuse termination.
Term 26 of the agreement states “you must live at the premises at all times and the premises must be used principally as a home for you and your family”. There is no comparable provision in the Residential Act 1986 (The “Act”). The closest provision is section 40(1) (b), which requires the tenant ensure the property is occupied principally for residential purposes. Therefore, under the provisions of the Act, unlike the agreement, there is no requirement that a tenant actually reside at the property they have rented.
The first matter to determine is whether there has in fact been a breach. On the material provided, it appears that the tenant is temporarily living in prison, at least September 2024. Can the tenant be bound by a term which prima facie imposes an obligation over and above that contained in the Act?
Section 11 of the Act states: 11 Act generally to apply despite contrary provisions. (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) The inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) The Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) of this section shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
The landlord is a provider of social housing. The tenant was at the material time eligible for social housing. Despite their present state of incarceration, there is no evidence that they are no longer eligible.
The relationship between the parties has a special character. Social housing is a limited resource that needs to be made available to those most in need. Demand exceeds supply. It is in the public interest that the landlord fully utilises the resources available. Properties that are empty are not being fully utilised, and this is not in the public interest. It is the purpose of the property and the nature of the agreement, which, in my view enables the parties to agree, under section 11(1)(b) of the Act, to terms such as term 26, which may prima facie be inconsistent with those usually applicable contained in the Act.
Term 26 is conjunctive, requiring the tenant to “live at the property at all times”, and to use the property as a home for themselves and whanau. The term is broader than requiring that the tenant use the property as their principal place of residence. Term 27 states “you must let us know in writing if you are going to be away from the premises for more than 30 days (for example, if you are on holiday or sick). As with term 26, this is inconsistent with the provisions of the Act, as a tenant, subject to the payment of rent and any water or wastewater charges, may spend as long as they wished away from their property. However due to the special character of the relationship like term 26 is also permissible under section 11(1)(b).
Together term 26 and 27 suggest that a tenant away from the property for more than 30 days is no longer considered to be living at the property.
The Tribunal may terminate a tenancy for a breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. Section 56(1)(c).
Where the breach is capable of remedy, the landlord must first serve a notice requiring the tenant to remedy the breach within at least 14 days and establish, on the balance of probabilities, that they have not.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
In determining the exercise of the discretion in section 56(1)(c), the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: i. The history of the tenancy. ii. Whether there has been a persistent failure after repeated warnings. iii. Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. iv. Whether the breach was inadvertent or deliberately committed. v. The conduct of the landlord. vi. The gravity of the breach. vii. Whether termination is a proportionate response to the breach. Decision
In this case, the landlord has not issued a 14-day breach notice on the grounds they believe the breach to be incapable of remedy. This is debateable, as in my view, not living at the property is a state of affairs that can be remedied with the tenant returning within a reasonable period. In this case, however, any failure to issue a notice is not fatal to the application, as it is clear from the evidence provided that the tenant is not presently living at the property and will likely not be able to do so until September 2024.
In determining whether it would be inequitable to refuse to terminate the tenancy, factors applying to whether the term is permissible under section 11(1)(b) may also be considered. Considering the nature and purpose of the agreement, it would in my view, be inequitable to refuse to terminate the tenancy. I also consider that the last rent payment was made on 31 January 2024, and by September 2024, rent will be at least seven months in arrears.
The tenancy is terminated immediately, and possession granted to the landlord. The landlord has provided an up to date rent summary. The Tribunal awards rent arrears to the hearing date, 25 June 2024.
There is no order for reimbursement of the filing fee. Name suppression.
Although they have been wholly successful and are entitled to name suppression the landlord does not seek it.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
Although the tenant is unable to advance an argument for name suppression in this case, I am satisfied that it is appropriate the Tribunal to exercise the discretion in 95A (4). This hearing has involved the disclosure of the tenant’s personal circumstances, which, while directly relevant to the application are, largely out of their control. While I am satisfied that the facts and reasoning of this decision are clearly in the public interest, I do not believe this interest necessarily extends to revealing the name of the tenant.

Claims and awards in Tenancy Tribunal application 4856260 — net $2,188.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 25 June 2024	$2,188.00	Rent arrears to 25 June 2024
Net award	$2,188.00
Total payable by Tenant to Landlord	$2,188.00

Order

The tenancy of [The tenant/s] at 19 Balloch Street, Fairfield, Hamilton 3214 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, immediately.
[The tenant/s] must pay Kāinga Ora–Homes And Communities $2,188.00 immediately, calculated as shown in the table below:

Reasons

Ms Thompson – Wise appeared for the landlord. There was no appearance by the tenant.
The landlord seeks termination of the tenancy for breach of the tenant’s obligations and rent arrears.
The tenancy agreement was entered on 09 August 2017 and is periodic.
The rent summary shows that in early February 2024, the tenant ceased making rent payments. Later that month, the tenant advised the landlord of their incarceration. The tenant also informed the landlord that they envisaged their predicament to be temporary, seeking bail to return to the property on or about 06 March 2024. On or about 06 March 2024, the landlord was advised that the tenant was next due to appear on 01 May 2024 and would remain in custody.
Thereafter, the landlord sought to persuade the tenant that it would be in their best interests, due to accruing rent arrears and other issues concerning the continued use of the property by others, to bring the tenancy to an end. The tenant refused to accept the landlord’s opinion, clearly hoping to use the property as the foundation for bail or place of residence following eventual release.
Unable to resolve the matter on 09 April 2024, the landlord filed an application for termination of the tenancy under section 56(1) of the Act and rent arrears. The application has not been brought on the fact that the tenant, at the material time, was over twenty-six weeks in arrears but on the basis that the tenant had breached a term of the agreement by failing to live at the property.
The application was listed for hearing on 10 May 2024. On 09 May 2024, the Tribunal was advised that the tenant was unable to attend the hearing by telephone on the scheduled date. The tenant requested an adjourned and the matter was adjourned to 27 May 2024.
The Tribunal was then advised that the tenant’s custodial status had changed from remand to a sentenced prisoner. The tenant advised the Tribunal that they would be released and able to attend a face-to-face hearing after 12 June 2024, whereafter the matter was moved to 25 June 2024. On 07 June 2024, the Tribunal was advised that the tenant although the sentence end date had been reached, they remained in custody on other matters but would be seeking bail on 24 June 2024 and hoped to appear in person on 25 June 2024. Its appears that the tenant was not released as anticipated. The landlord states they have been advised that the tenant is now the subject of another short sentence of imprisonment with a release date in September 2024.
The issue in this case is whether there has been breach of the agreement and if so, whether it would in inequitable to refuse termination.
Term 26 of the agreement states “you must live at the premises at all times and the premises must be used principally as a home for you and your family”. There is no comparable provision in the Residential Act 1986 (The “Act”). The closest provision is section 40(1) (b), which requires the tenant ensure the property is occupied principally for residential purposes. Therefore, under the provisions of the Act, unlike the agreement, there is no requirement that a tenant actually reside at the property they have rented.
The first matter to determine is whether there has in fact been a breach. On the material provided, it appears that the tenant is temporarily living in prison, at least September 2024. Can the tenant be bound by a term which prima facie imposes an obligation over and above that contained in the Act?
Section 11 of the Act states: 11 Act generally to apply despite contrary provisions. (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) The inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) The Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) of this section shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
The landlord is a provider of social housing. The tenant was at the material time eligible for social housing. Despite their present state of incarceration, there is no evidence that they are no longer eligible.
The relationship between the parties has a special character. Social housing is a limited resource that needs to be made available to those most in need. Demand exceeds supply. It is in the public interest that the landlord fully utilises the resources available. Properties that are empty are not being fully utilised, and this is not in the public interest. It is the purpose of the property and the nature of the agreement, which, in my view enables the parties to agree, under section 11(1)(b) of the Act, to terms such as term 26, which may prima facie be inconsistent with those usually applicable contained in the Act.
Term 26 is conjunctive, requiring the tenant to “live at the property at all times”, and to use the property as a home for themselves and whanau. The term is broader than requiring that the tenant use the property as their principal place of residence. Term 27 states “you must let us know in writing if you are going to be away from the premises for more than 30 days (for example, if you are on holiday or sick). As with term 26, this is inconsistent with the provisions of the Act, as a tenant, subject to the payment of rent and any water or wastewater charges, may spend as long as they wished away from their property. However due to the special character of the relationship like term 26 is also permissible under section 11(1)(b).
Together term 26 and 27 suggest that a tenant away from the property for more than 30 days is no longer considered to be living at the property.
The Tribunal may terminate a tenancy for a breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. Section 56(1)(c).
Where the breach is capable of remedy, the landlord must first serve a notice requiring the tenant to remedy the breach within at least 14 days and establish, on the balance of probabilities, that they have not.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the likely consequences of continued breach before it will exercise its discretion to terminate.
A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
In determining the exercise of the discretion in section 56(1)(c), the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: i. The history of the tenancy. ii. Whether there has been a persistent failure after repeated warnings. iii. Whether the history of breaches was such that it was unlikely the tenant would comply with their obligations in the future. iv. Whether the breach was inadvertent or deliberately committed. v. The conduct of the landlord. vi. The gravity of the breach. vii. Whether termination is a proportionate response to the breach. Decision
In this case, the landlord has not issued a 14-day breach notice on the grounds they believe the breach to be incapable of remedy. This is debateable, as in my view, not living at the property is a state of affairs that can be remedied with the tenant returning within a reasonable period. In this case, however, any failure to issue a notice is not fatal to the application, as it is clear from the evidence provided that the tenant is not presently living at the property and will likely not be able to do so until September 2024.
In determining whether it would be inequitable to refuse to terminate the tenancy, factors applying to whether the term is permissible under section 11(1)(b) may also be considered. Considering the nature and purpose of the agreement, it would in my view, be inequitable to refuse to terminate the tenancy. I also consider that the last rent payment was made on 31 January 2024, and by September 2024, rent will be at least seven months in arrears.
The tenancy is terminated immediately, and possession granted to the landlord. The landlord has provided an up to date rent summary. The Tribunal awards rent arrears to the hearing date, 25 June 2024.
There is no order for reimbursement of the filing fee. Name suppression.
Although they have been wholly successful and are entitled to name suppression the landlord does not seek it.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
Although the tenant is unable to advance an argument for name suppression in this case, I am satisfied that it is appropriate the Tribunal to exercise the discretion in 95A (4). This hearing has involved the disclosure of the tenant’s personal circumstances, which, while directly relevant to the application are, largely out of their control. While I am satisfied that the facts and reasoning of this decision are clearly in the public interest, I do not believe this interest necessarily extends to revealing the name of the tenant.

Tenancy Tribunal case 4856260 — Rent arrears at 19 Balloch Street, Fairfield, Hamilton 3214

At a glance

Tenancy Tribunal case 4856260 — Rent arrears at 19 Balloch Street, Fairfield, Hamilton 3214

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions