Published tribunal order
Tenancy Tribunal case 4894120 — Tenancy dispute
Decided 5 Aug 2024 · Published 5 Aug 2024 · Application 4894120
Party names are redacted in the official published order.
Order
- Double J Grand Trustees Limited must pay [the tenant] $20.44 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The tenant has applied for refund of the bond and reimbursement of the filing fee following the end of the tenancy.
- The landlord has made a cross application for $1,680.00 rent arrears, refund of the bond and reimbursement of the filing fee.
Was the tenancy fixed term or periodic?
- The landlord engaged the services of a property manager to find and place the tenant in the property.
- The evidence shows the property manager drafted a tenancy agreement but never got the tenant to sign it in person and she has not demonstrated to the landlord the tenant signed the tenancy agreement electronically via an auditable trail from a secured e signature process that produces a final tamper-evident digital certificate embedded into the completed signed document.
- The tenant produced a periodic tenancy agreement, which she says she obtained from WINZ. This agreement shows no sign of having been electronically altered and appears to be a genuine copy of the tenancy agreement the tenant has been given.
- The landlord produced a fixed term tenancy agreement that is identical in every way to the periodic tenancy agreement provided in evidence by the tenant., except it states it is a fixed term tenancy agreement commencing on 27 October 2023 and ending on 31 October 2024. The landlord was emailed this signed copy of the tenancy agreement by the property manager on an undisclosed date. The email trail provided by the landlord shows it was sent an unsigned version of the tenancy agreement on 18 October 2023 and the landlord signed and returned it by email to the property manager, along with the bond form, on 19 October 2023. Those two attachments referred to in these two emails were not produced in evidence by the landlord.
- The landlord and tenant’s copies of the tenancy agreement, produced in evidence, have an identical tenant signature on them that the tenant says is not her original signature, but an electronically transposed version of her signature she alleges the property manager obtained from the tenant signing for receipt of the keys.
- The landlord says the tenant must have electronically altered the fixed term tenancy agreement and it relies on an email from the property manager to the tenant dated 19 October 2023 at 9:38am that says “Hi Alexandrea, As discussed we are pleased to offer the above property for $420 p/wk on condition that all parties have signed or funds have been paid. I have prepared a tenancy for you commencing on 27/08/23 for a fixed term tenancy. Please read the attached Tenancy Agreement, sign, and return”. That email has no attachment for me to review and no tag under the email header to show there ever was such an attachment. Further, the landlord has not produced any response from the tenant to that email showing she accepted a fixed term tenancy.
- For a tenancy agreement to be binding, the party seeking to enforce the agreement needs to prove there was an offer (the property manager’s 19 October 2023), the offeree’s acceptance of that offer (no such proof has been provided by the landlord/offeror), proof that there were certainty of the terms being offered and (there are no certainty of terms in relation to the type of tenancy agreed to by the parties as there are two conflicting agreement). In addition, there must be consideration, which is the rent paid to and received by the landlord.
- The tenant has health issues that meant the property was not ideal for her needs, but it was an emergency housing option WINZ approved, based on the tenancy agreement it had on the tenant’s file, until it could help her to find longer term more suitable accommodation. She had to move from the motel she had been staying in prior to commencing this tenancy. The tenant says she would never have agreed to a 12-month fixed term tenancy for a property that could not adequately meet her full needs.
- The emails and text messages between the landlord and the tenant from 20 March 2024 to 6 May 2024 show the parties were not certain about the nature of the tenancy agreement and that the tenant is confused about why the landlord is trying at times to hold her to a fixed term tenancy, break lease fees of $700 and then at other times telling her she legally needs to give it 28 days’ notice to terminate the tenancy. The text message the landlord sent to the tenant on 27 April 2024 clearly states “Hi [tenant’s name suppressed] congratulations on finding a new home more suitable tor your needs. This is the first notice have given and I require 28 days’ notice by law to end the tenancy. If I have missed the date when you confirmed your intention end the tenancy with a confirmed date please resend?”.
- The text message, emails and letter evidence produced by the parties shows: a. The tenant says she provided a letter dated 8 March 2024 to the landlord informing him of a number of repair and maintenance issues, the tenant has made a decision not to pursue in the Tribunal and informing him that she is giving notice terminating the tenancy and will vacate the property on 7 May 2024. The letter reads “It is with regret that at this inspection I will be giving you notice to quit the property. So I will be moving out on the 7 may, I have asked several times for repairs to be done, But as of this date you have no repairs...”. The landlord denies having received this letter that the tenant says she gave it when it came to discuss the repair and maintenance issues after the property inspection in the first week of March 2024; b. The landlord produced an email from the tenant dated 20 March 2024 that ends with “I am choosing quality of life over quantity. So i will be looking for new house soon so if i give you notice now i will ready to move and your man hasn’t been round to do anymore repairs. i told you on the phone it would be the 9th may you said ok the above email give more than 4 weeks notice”. This email clearly shows the tenant again gave notice she was ending the tenancy and would move out by 9 May 2024 because of ongoing unresolved repair and maintenance issues and the premise not meeting her disability related needs. This email provides proof the tenant gave more than the statutory 28 days’ notice she is required to give under a periodic tenancy; c. There are a series of text messages and emails between 11 April 2024 and 6 May 2024 that show that sometimes the landlord is reinforcing the view the tenancy agreement is fixed term and the landlord requests the tenant sub let or reassign the lease to the end of the tenancy, then it offers to get the property manager to find a new tenant for a break lease fee of $700 and then it contradicts itself in a text message dated 27 April 2024 that tells the tenant her text message of the same day was the first time it had been given a move out date of 9 May 2024, and that the tenant was required to give 28 days’ notice. This 27 April 2024 text message came chronologically after all the others alluding to the lease as being fixed term; and d. The tenant confirmed on 6 May 2024 she had already moved out and had paid rent to 9 May 2024. This is consistent with the 8 March 2024 letter that says she will have moved out by 7 May 2024 and the 20 March letter that confirms she will have moved out by and will pay rent to 9 May 2024 and with her 11 April 2024 and 27 April 2024 text messages saying she is moving out by 9 May 2024.
- The tenant confirmed during the hearing she was very confused with the two versions of a tenancy agreement she says she had never signed, and the landlord’s inconsistent text messages that discussed ending the lease and then refuted ever being told the tenant wanted to end the lease on 9 May 2024.
- On the balance of probabilities, I am satisfied the periodic tenancy held by WINZ, that it approved the tenancy on as an emergency housing option for the tenant, is the one the tenant agreed to and should be bound by. Even if I had accepted the fixed term tenancy agreement was the correct agreement, on application by the tenant I would have reduced the fixed term of the tenancy in all the circumstances as it would not be fair just and reasonable for a landlord that refused to allow the tenant to put a ramp on the property to allow her wheelchair access and were not agreeable to her having a service dog training to give indications of impending epilepsy seizures to hold her to a fixed term tenancy beyond 9 May 2024.
- For the reasons outlined above, I find the tenancy was periodic, the tenant gave the landlord more than 28 days’ notice on 20 March 2024 ending the tenancy and the tenant is liable for rent to 9 May 2024.
How much is owed for rent?
- I have found the tenancy ended on 9 May 2024, as per the written notice given to the landlord on 20 March 2024. The landlord provided rent records which prove there were no rent arrears owing at the end of the tenancy.
- The tenant has produced evidence she moved out on 5 May 2024.
- The landlord says it did not get the keys to the property back until 24 May 2024 because it allowed the tenant to retain the keys to get the property cleaned. This argument was not fully traversed as the landlord confirmed to me it was prepared to accept the tenancy ended on 9 May 2024 and no further rent was owing to it. Reimbursement of filing fee
- Because Alexandrea Croft has wholly succeeded with the claim, I must reimburse the filing fee. Name suppression
- The tenant applies for non-publication of her name and identifying details.
- 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.
- The tenant has wholly succeeded in her proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
- Non-publication is ordered.
- The landlord also made an application for its name and identifying details to be suppressed.
- The landlord stated the issues in this proceeding stemmed from the property manager not having had clear and auditable processes that could conclusively prove the tenancy was fixed term and it should not be punished by having its name published on this Order.
- I disagree, the landlord’s male Trustee representative did not hold the property manager accountable, did not ensure there were certainty of terms and that the tenant had legally signed the tenancy agreement he says he signed and returned to the property manager. The male Trustee also sent mixed messages to the tenant after she had made it clear she was giving him notice (in several communications from 20 March 2024 to 29 April 2024) because he had made it untenable for her to continue her tenancy due to unresolved repair and maintenance issues and his lack of willingness to accommodate her needs as a person with a disability facing access to the house issues and her need for a service dog.
- The evidence proves the male Trustee, was accountable for managing the tenancy, and is at least in part responsible for the issues that led the parties to the Tribunal today. The property manager did little more than place the tenant in the property and try to facilitate the signing of a binding and enforceable tenancy agreement that gave certainty of terms to both parties. I am unsure how the two versions came into being and why the property manger did not ensure she could prove which agreement was the one she intentionally drafted, sent to the male Trustee and got an auditable tenant’s signature on.
- I am satisfied that the public interest in this matter outweighs any duress publishing the landlord’s name could result in when it is seeking to let out properties to other tenants in the future. I therefore decline to grant the landlord’s suppression of its name and identifying details.