Published tribunal order
Tenancy Tribunal case 4862224 — Rent arrears at 12 Fytfield Place, Paraparaumu, Paraparaumu 5032
Decided 14 May 2024 · Published 14 May 2024 · Application 4862224
Landlord favoured
- Rent arrears
- 14-day notice
Order
- No suppression Orders apply to this decision.
- Stephanie Davinia Stone and James Edward Tanirau owe Carol Anne Exton and Brent Hugh Rose, as Trustees for The Carol Exton Family Trust $1,320.44 (“the debt”).
- Stephanie Davinia Stone Tanirau and James Edward Tanirau must pay to the landlords rent and the debt as follows: a. the sum of $2,620.44 must be paid no later than Saturday 18 May 2024 being: i. $1,300.00 for the fortnightly in advance rent payment due on 4 May 2024; ii. $1,300.00 for the fortnightly in advance rent payment due on 18 May 2024; iii. $20.44 being the filing fee on this application. b. $1,300.00 for the fortnightly rent in advance, is to be paid on Saturday 1 June 2024 and each second Saturday thereafter (unless the rent is increased before then), throughout the tenancy.
- If the tenants fail to pay rent and rent arrears in terms of Order 3 a i and ii, or if, within 3 months from the date of this Order, the tenants fail to pay the fortnightly rent in advance in accordance with Order 3 b, within 2 working days of the due dates: a. The tenancy at 12 Fytfield Place, Paraparaumu, Paraparaumu 5032 will terminate and the landlords will have immediate possession of the premises; b. The balance of the debt will be payable immediately.
- If the tenants fail to pay the filing fee within 2 working days of the due date, the filing fee will be payable immediately.
Reasons
- Both parties attended the hearing which was held by teleconference.
- The landlords have applied for termination of the tenancy, rent arrears and refund of the bond. The tenants want to avoid immediate termination.
Should a conditional termination order be made?
- Under s.55(1)(aa) RTA, the Tribunal must make an Order terminating the tenancy if: “the tenancy is a periodic tenancy and— (i) on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and (ii) on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice.”
- The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days, and establish that the tenant has failed to do so. See section 56(1) Residential Tenancies Act 1986.
- The landlords are entitled to an Order terminating the tenancy on both those grounds.
- There has been a long history of inconsistent rent payments. The tenants have tried to keep up with the rent but because their income is provided through multiple agencies, it has been difficult to co-ordinate those income payments with the tenants’ rent obligations.
- As at 20 April 2024 the rent was $2,450.00 in arrears. The arrears were cleared on 26 April 2024, but no rent has been paid since.
- As a result, throughout the tenancy, the landlords have not had the certainty they are entitled to, of the rent being paid when due.
- The landlords have had to issue multiple breach notices. They have lost trust in the tenants’ ability to manage the situation and ask for an order terminating the tenancy.
- Despite my finding that it would be inequitable to refuse to terminate the tenancy, having heard the evidence and considered that the tenants have been able, albeit late and inconsistently, to bring the rent up to date, I am satisfied that the tenants should be given a final opportunity to put in place arrangements to ensure that from now on the rent is paid when due. The tenants believe an Order of the Tribunal will assist them in achieving that.
- I have granted a conditional termination to provide that final opportunity, while ensuring the landlord will not be required to accommodate continuing breaches.
- The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order is enforceable for 90 days from the first breach. See section 64(4)(b) Residential Tenancies Act 1986.
- If it is possible for the agencies supporting the tenants to coordinate their income entitlements, so their rent can be paid to the landlords direct from a single agency, that would seem likely to assist greatly.
- Because Carol Anne Exton and Brent Hugh Rose as Trustees for The Carol Exton Family Trust have succeeded with the claim I must reimburse the filing fee.