Published tribunal order
Tenancy Tribunal case 4860240 — Rent arrears
Decided 18 Jun 2024 · Published 18 Jun 2024 · Application 4860240
- Rent arrears
- Smoke alarms
- Cleanliness
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Sub-Tenant’s name and identifying details.
- Yasmin Chew must pay [The tenant] $1,920.44 immediately, to bank account [bank account number suppressed], calculated as shown in table below.
- The Main Landlord in these proceedings has no liability for the debt owed by the Sub-Landlord to the Sub-Tenant. All payments owing to the main Landlord ($1,415.95 for the last week of rent to 24/03/24 and water rates arrears of $415.94 for the period December 2023 to March 2024) have been discharged by the Sub-Landlord and a refund of the remaining bond of $2,584.06 made to the Sub-Landlord.
Reasons
- The Main Landlord, Sub-Landlord and Sub-Tenant attended the hearing.
- The Sub-Tenant has applied for reimbursement of rent overpayment, refund of his and his brother’s bond, and reimbursement of the filing fee following the end of the tenancy. Jurisdiction
- Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”
- Prima facie, the premises at [Tenancy addressed supressed] (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
- “Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
- Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
- The Main Landlord and Sub-Landlord/Head Tenant both granted the right to the Sub-Tenant to rent a room and to share the other household facilities with two other flatmates and the Sub-Landlord/Head Tenant. The Sub-Landlord/Head Tenant cut out the Main Landlord altogether when it came to the Sub-Tenant making any rent or outgoings payments. She paid the full rent, bond and outgoings to the Main Landlord directly and required the flatmates and the Sub- Tenant to pay their rent and any outgoings to her directly. This payment system clouded the issue of the real nature of the legal relationship as both the Sub- Landlord/Head Tenant and the Sub-Tenant are listed on the main tenancy agreement as tenants but only one of them is on the Bond Centre document and the Main Landlord had no relationship with the Sub-Tenant after he had electronically signed the tenancy agreement. All of the tenants should have had the same tenancy relationship with the Main Landlord with the Head Tenant/ Sub-Landlord being the main point of contact. The Head Tenant instead took on the role of Sub-Landlord to the three Sub-Tenants. For example, the bond was paid to the Main Landlord by the Head Tenant/Sub-Landlord, and she was the only tenant listed on the Bond Centre form. She obtained the Sub-Tenant’s portion of the bond, and the only two tenant’s bonds and held them herself. When the other two tenant’s left the Sub-Landlord/Head Tenant entered into a flat sharing arrangement with these persons. They were never listed on the main tenancy agreement. The Head Tenant/Sub-Landlord collected rent from the Sub-Tenant and made one payment to the Main Landlord.
- Section 11 of the RTA states “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”.
- I am satisfied that the Sub-Landlord and the Sub-Tenant entered and signed a tenancy agreement with the Main Landlord and the actions of the tenants named in the tenancy agreement prove from the start of the tenancy the relationship between the Head Tenant and Tenants was one of Sub-Landlord and Sub-Tenants and that the terms of the tenancy agreement do not accurately reflect the true nature to the relationship between the Head Tenant and the Tenants. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
- The Sub-Tenant has successfully proven the relationship he had with the Head Tenant was in fact one of Sub-Tenant and Sub-Landlord and the RTA provisions that relate residential tenancies apply.
How much is owed for rent?
- The Sub-Tenant’s tenancy ended around 22 February 2024. The Sub-Tenant provided rent records from his bank statements which prove the Sub-Tenant made an overpayment of rent of $1,140.00 on 8 January 2024 to the Sub- Landlord. The Sub-Landlord was not able to disprove liability for this overpayment.
- The parties agreed that some of the payments on the Sub-Tenant’s rent summary sheet related to payments by the Sub-Tenant of his brother’s debts or for a Airbnb they shared at some point during the tenancy. The Sub-Landlord was not able to prove that the $1,330.00 payment made by the Sub-Tenant on 8 January 2024 was for rent arrears of about six weeks owing to her by the Sub-Tenant. The Sub-Tenant’s bank statements and rent summary sheet prove that at no time during his tenancy did he owe the Sub-Landlord six weeks rent arrears.
- The Sub-Tenant confirmed that other tenants/flatmates had told him the Sub- Landlord was telling them the Sub-Tenant owed her six weeks rent so he paid her that sum of money in good faith. When he wen through all of his bank statements and created a ren summary, it became evident he had not been in rent arrears at that time and had overpaid rent.
- I am satisfied that the week the Sub-Tenant paid the Sub-Landlord $1,330.00 in rent, he only owed her $190.00. Therefore, he had overpaid rent of $1,140.00.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The Sub-Landlord says the Sub- Tenant did not leave the premises reasonably clean and tidy and did not remove all of his rubbish.
- The Sub-Landlord claimed that some of the bond money should be retained by her because the Sub-Tenant did not leave his room in a reasonably clean and tidy state and did not remove all his personal belongings.
- The Sub-Landlord confirmed that she and six others cleaned the rental premise, and she did not incur any expenses because of the Sub-Tenant not having removed all of his clothing and not having left him room in a reasonably clean and tidy state.
- I am satisfied the Sub-Landlord has not incurred any cleaning expenses and therefore the Sub-Tenant’s full $760.00 bond must be refunded to him. Refund of brother’s bond
- The Sub-Tenant sought refund of his brother Eli’s $1,000.00 bond.
- The Tribunal cannot award the Sub-Tenant monies owing to his brother by the Sub-Landlord.
- The parties to this proceeding confirmed the Sub-Tenant’s brother was not party to the tenancy agreement, never signed any agreement with the main Landlord or the Sub-Landlord and evidentially was proven to be a flatmate of the Sub- Landlord’s. Therefore, the dispute between the Sub-Landlord and the Sub- Tenant’s brother must be pursued by the Sub-Tenant’s brother in the Dispute’s Tribunal. The Tenancy Tribunal has no jurisdiction over flatmate disputes. Reimbursement of the filing fee
- Because the Sub-Tenant has wholly succeeded with the claim, I must reimburse the filing fee.