What was Tenancy Tribunal case 4856368 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4856368?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4856368?

The dispute type was not classified.

Where can I read the official tribunal order for case 4856368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10353039-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4856368 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4856368?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4856368?

The dispute type was not classified.

Where can I read the official tribunal order for case 4856368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10353039-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4856368 — Tenancy dispute

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The applicant sought a release from a fixed-term tenancy.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Should the fixed term 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 the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
This tenancy commenced 29 September 2023. The two named tenants are a mother and daughter. A third occupant was recorded on the tenancy agreement. He is the adult son, sibling of the daughter. For reasons of their own, he was left off the tenancy agreement. The mother was not in fulltime residence.
Unfortunately, the son left the premises and moved to Australia due to personal circumstances. This was approximately only three months into the tenancy. The tenants were struggling and requested a break.
The landlord had been active in marketing the premises until 2 April 2024. At this time, a flatmate was expected and the tenants notified the landlord, telling them the tenancy will continue. Some five days later, the flatmate withdrew due to unanticipated parking issues due to the size of his work van.
On 9 April 2024 the tenants requested a break in the fixed-term. This was declined. After discussion with Tenancy Services, an application to the Tribunal was made that same day, seeking an order reducing the fixed-term.
At the date of the hearing, no active marketing by the landlord has resumed as the tenants dispute the cost and effectiveness of the landlord’s efforts to date. The tenants preference, as stated at the hearing, was to maintain that status. It appears their preference, if this application was unsuccessful, was to seek to find replacement/flatmates themselves. That is their decision to make but I note the landlord offered to look at a capped amount for related break costs.
Unfortunately, there has not been any success to date with signing a new tenancy. While the tenants are frustrated with this, I note the same result to date from their own attempts to find replacements or even a flatmate.
If I was to reduce the fixed-term, the first hurdle is to conclude that the current situation is due to an unforeseen change in the applicant’s circumstances. This must be satisfied before any assessment of relative hardship is made. Circumstances that exist at the beginning of the tenancy are unlikely to later considered unexpected. The parking issue that appears a hinderance in attracting a replacement occupant, as a minimum, was something that factored into the initial arrangement where the son has a similar issue with parking access of a work van.
The change is that the third occupant has left. A replacement was found but did not take up the arrangement after initialling agreeing. The two named tenants remain, one is there more in name with a primary residence elsewhere, staying occasionally. I fail to find that this change meets the threshold to constitute an unforeseen change in circumstances. Given this conclusion, I must dismiss the tenant application for a reduction in the fixed-term tenancy. It is appreciated the burden on the tenant resident fulltime and both parties are encouraged to work collectively to achieve a suitable outcome.
In terms of the break costs to date and as invoiced, if that cannot be mutually agreed between the parties, it is for the landlord to make an application for recovery of expenses reasonably incurred (s 44A RTA). Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, 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.
The tenants requested suppression in their application. Despite the lack of success, the circumstances leading to the application, including the advice from Tenancy Services, means I order suppression of the tenants’ names. I also acknowledge in doing so that the rent is being maintained, albeit with some difficulty.

Reasons

Both parties attended the hearing.

The applicant sought a release from a fixed-term tenancy.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”

In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.

Should the fixed term 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 the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.

Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.

The weighing of relative hardship is a question of fact to be assessed objectively in each case.

This tenancy commenced 29 September 2023. The two named tenants are a mother and daughter. A third occupant was recorded on the tenancy agreement. He is the adult son, sibling of the daughter. For reasons of their own, he was left off the tenancy agreement. The mother was not in fulltime residence.

Unfortunately, the son left the premises and moved to Australia due to personal circumstances. This was approximately only three months into the tenancy. The tenants were struggling and requested a break.

The landlord had been active in marketing the premises until 2 April 2024. At this time, a flatmate was expected and the tenants notified the landlord, telling them the tenancy will continue. Some five days later, the flatmate withdrew due to unanticipated parking issues due to the size of his work van.

On 9 April 2024 the tenants requested a break in the fixed-term. This was declined. After discussion with Tenancy Services, an application to the Tribunal was made that same day, seeking an order reducing the fixed-term.

At the date of the hearing, no active marketing by the landlord has resumed as the tenants dispute the cost and effectiveness of the landlord’s efforts to date. The tenants preference, as stated at the hearing, was to maintain that status. It appears their preference, if this application was unsuccessful, was to seek to find replacement/flatmates themselves. That is their decision to make but I note the landlord offered to look at a capped amount for related break costs.

Unfortunately, there has not been any success to date with signing a new tenancy. While the tenants are frustrated with this, I note the same result to date from their own attempts to find replacements or even a flatmate.

If I was to reduce the fixed-term, the first hurdle is to conclude that the current situation is due to an unforeseen change in the applicant’s circumstances. This must be satisfied before any assessment of relative hardship is made. Circumstances that exist at the beginning of the tenancy are unlikely to later considered unexpected. The parking issue that appears a hinderance in attracting a replacement occupant, as a minimum, was something that factored into the initial arrangement where the son has a similar issue with parking access of a work van.

The change is that the third occupant has left. A replacement was found but did not take up the arrangement after initialling agreeing. The two named tenants remain, one is there more in name with a primary residence elsewhere, staying occasionally. I fail to find that this change meets the threshold to constitute an unforeseen change in circumstances. Given this conclusion, I must dismiss the tenant application for a reduction in the fixed-term tenancy. It is appreciated the burden on the tenant resident fulltime and both parties are encouraged to work collectively to achieve a suitable outcome.

In terms of the break costs to date and as invoiced, if that cannot be mutually agreed between the parties, it is for the landlord to make an application for recovery of expenses reasonably incurred (s 44A RTA). Suppression

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Further, 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.

The tenants requested suppression in their application. Despite the lack of success, the circumstances leading to the application, including the advice from Tenancy Services, means I order suppression of the tenants’ names. I also acknowledge in doing so that the rent is being maintained, albeit with some difficulty.

Tenancy Tribunal case 4856368 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 4856368 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Frequently asked questions