Published tribunal order
Tenancy Tribunal case 4876260 — Rent arrears at 103 Canning Road, Camberley, Hastings 4120
Decided 23 May 2024 · Published 23 May 2024 · Application 4876260
Mixed / unclear
- Rent arrears
Order
- The amount owed by Emma Hoko and Quintin Wallace to pay the rent to the end of the rent period 24 May 2024 to 30 May 2024 is $1,660.44 (“the debt’”) being: a. rent arrears owed at today 23 May 2024 - $980; plus b. rent for 24 May 2024 to 30 May 2024 - $660.00; plus c. filing fee on this application - $20.44
- The debt is to be paid by fortnightly payments of $150.00 each with the first payment today, 23 May 2024 and continuing each second Thursday until the debt is paid in full.
- From the rent period starting 31 May 2024, Emma Hoko and Quintin Wallace must pay the rent fortnightly in advance by payments of $1,320.00 (unless the rent is lawfully increased) with the first payment on Wednesday 30 May 2024 and continuing each second Wednesday after that.
- If any of the payments towards the rent and arrears required in Order 2 are not made within 2 days of the due date, or if, within 3 months from the date of this order any of the fortnightly rent payments in Order 3 are not made within 2 working days of the due date, the tenancy will immediately terminate with possession returning to Property Brokers Limited as Agent for Joe & Natalie Mcnally.
Reasons
- Both parties attended the hearing.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The tenant wants to repay the debt to avoid immediate termination.
Should a conditional termination order be made?
- 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 tenant breached their obligations by filing to pay rent arrears in accordance with a 14 day notice issued on 23 May 2024. It would be inequitable to refuse to terminate the tenancy.
- The evidence also satisfies me that in terms of s.55(1)(aa), the tenants have been 5 days in arrears more than 3 times within a 90 period and have been given notices of the breaches as required. Accordingly, the landlord is entitled to request termination of the tenancy.
- Despite those findings, having heard the evidence I am satisfied that part (but certainly not all) of the issue has been a mismatch between the dates on which the rent is due and the dates on which the tenants receive their income.
- I note too that over a reasonably lengthy tenancy the tenants have largely maintained the rent without the arrears accumulating to an alarming degree, although I accept the property manager’s position on behalf of the owner that the owner is entitled to have the rent paid when it is due without having to worry whether the mortgage can be paid.
- The tenants want to be able to pay the rent fortnightly to coincide with their wage payments. It would only be fair to the landlord to allow that, if the rent was paid fortnightly in advance. The payment Orders are made accordingly.
- It would also only be fair to the landlord that an outcome of this application was a requirement that ongoing rent is paid when due for a significant period allowing the landlord some confidence that the tenants are able to maintain that position consistently.
- In all the circumstances, despite the property managers having made it clear that the owners ask for termination for the tenancy. I am persuaded that the tenants should be given a final opportunity to demonstrate an ability to maintain the required rent payments. They are aware that if another such application is required in future, the tenancy would almost certainly be terminated.
- I have granted a conditional termination. See section 78(3) Residential Tenancies Act 1986.
- 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.
- Because Property Brokers Limited as Agent for Joe & Natalie Mcnally has succeeded with the claim I must reimburse the filing fee.