Published tribunal order
Tenancy Tribunal case 4904079 — Tenancy dispute at 20 Glastron Place, Bayview, Auckland 0629
Decided 27 Jun 2024 · Published 27 Jun 2024 · Application 4904079
Landlord favoured
- 14-day notice
- Water Rates
Order
- The tenancy of 20 Glastron Place, Bayview, Auckland 0629 is terminated, and possession is granted to Barfoot & Thompson Property Limited as agent for K W Wong & W F Wu at 11:59pm on Monday 15 July 2024.
- The Bond Centre is to pay $1,095.68 from the bond of $2,240.00 (3566124- 007) to Barfoot & Thompson Property Limited as agent for K W Wong & W F Wu immediately.
- The balance of the bond of $1,185.20 is to remain at the Bond Centre.
Reasons
- The landlord’s agent attended the hearing. Shortly before the hearing, the tenant sought an adjournment for medical reasons. No medical certificate was supplied in the application. At the time of the hearing, the registrar attempted to call the tenant on two last known numbers, however the tenant could not be reached. Given the lateness of the adjournment request, the lack of supporting documentation and that I was unable to speak to the tenant, I determined it was appropriate to proceed with the matter in her absence.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
Should the tenancy be terminated for rent arrears?
- The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrears; and b. 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; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. See section 55(1)(aa) Residential Tenancies Act 1986 (the Act).
- The landlord’s agent served notices advising the tenant she was in rent arrears on three occasions, being 30 April 2024, 7 May 2024 and 14 May 2024. However, I find each of the three notices were not in the form required by the Act, specifically s 55(1)(aa)(ii) and (iii) were not complied with.
- Although the application to the Tribunal was made within 28 days of the date of the third notice, given the incorrect form of the notices, I find the grounds have not been established under s 55(1)(aa) of the Act and the tenancy cannot be terminated on that basis.
- Furthermore, the landlord advises that as at the date of the hearing, the tenant was no longer in rent arrears. Accordingly, I do not terminate the tenancy on this basis.
- While the rent arrears has been remedied, the landlord also applied for termination of the tenancy for breach of the tenant’s obligations to pay the water rates.
Should the tenancy be terminated for failure to pay water rates?
- The Tribunal may terminate a tenancy for a breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) of the Act.
- 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.
- In this case, the landlord’s agent says the tenant has breached their obligations by failing to pay water rates. This is not the first time the landlord’s agent has applied to the tribunal on the basis of the tenant’s failure to pay water rates. An application was previously made on 28 December 2023, and decision issued 4 March 2023, requiring the tenant to pay water rate arrears, which at that date were $645.42 in arrears. As in the current circumstances, that application was initially made on the basis of rent arrears also, however by the time of the hearing, the rent arrears had been remedied. It is in the same situation in this application.
- At the date of this application, the tenant had not paid the previous order for water rates, being $645.42, and has accrued a further $409.38 in water rates arrears. The landlord has provided records to prove those amounts owed.
- On 30 April 2024, the landlord served a 14-day notice on the tenant advising the tenant they were in breach by failing to pay water rate arrears. The tenant did not remedy the breach within the required period, and the total owed in water rates (inclusive of the amount ordered in the decision of 4 March 2023) is now $1,054.80.
- Given this is the second time the landlord has applied to the Tribunal for water rate arrears, and on each occasion, at the time of application, the tenant has been in rent arrears only to rectify that shortly before the hearing, I am of the view it would be inequitable to refuse to terminate the tenancy. The tenant must be well aware by now of her obligation to pay rent on time, and to pay the water rates as they fall due. The landlord should not be required to make an application to the Tribunal in order to motivate the tenant to pay her rent and water rates.
- Given the tenant advised she could not attend today’s hearing due to unspecified medical reasons, I will not order an immediate termination. Termination will occur in two weeks’ time at the end of Monday 15 July 2024. The tenant is reminded she is required to pay rent up until that date, as well as water rates.
- The landlord has succeeded with the claim, therefore, the tenant must also reimburse the landlord for the filing fee.