What was Tenancy Tribunal case 4907735 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 3, 63 Rimu Street,

How much money was awarded in case 4907735?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4907735?

The primary dispute was State of repair. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4907735?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10836773-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4907735 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 3, 63 Rimu Street,

How much money was awarded in case 4907735?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4907735?

The primary dispute was State of repair. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4907735?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10836773-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 63 Rimu Street, New Lynn, Auckland 0600 Tenancy Tribunal Case 4907735 — State of repair

Order

The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat 3, 63 Rimu Street, New Lynn, Auckland 0600 is reduced and now ends at 12 noon on Monday 23 September 2024.
Rent is payable by the tenants up to and including 22 September 2024.
The landlord has unreasonably withheld consent to an assignment of the tenancy.
Aspire Property Management Limited Acting As Agent For Elizabeth Duff And Janine Skelton must pay [The tenant/s] $20.44 for the filing fee, immediately.
Section 44A of the Residential Tenancies Act 1986 does not apply to this tenancy and the landlords are not entitled to recover from the tenants, expenses incurred in respect of the early termination of the tenancy or the reletting of the premises (for the avoidance of doubt this prohibition includes advertising, credit checks, the cost of methamphetamine testing, and agent time).
The tenants’ claim for compensation for maintenance breaches is withdrawn.
The tenants are reserved leave to make a new application relating to maintenance breaches if the landlord files a claim relating to this tenancy.

Reasons

Both tenants and two representatives for the landlords attended the video hearing held on 9 September 2024.
The landlords live overseas and have appointed the named property management company to act as their agent, which is required by section 16A Residential Tenancies Act 1986 (RTA) when a landlord is overseas for more than 21 consecutive days. References to “landlord” in this decision includes the landlords and their agent. An agent appointed under this section has, as against the tenant, all the rights and obligations of the landlord; s16A(5) RTA.
The tenants have applied for:- a. reduction of the fixed-term tenancy due to end on 7 February 2025, and b. compensation related to alleged failure to maintain the premises in a reasonable state of repair and ensure that urgent repairs are carried out promptly.
After hearing evidence from both parties, I made an oral decision at the end of the hearing that the term of the tenancy is reduced, and the tenancy will terminate at 12 noon on Monday 23 September 2024.
This decision gives the reasons for the above decision and finalises all other issues.
The bond remains in place as security for the usual end of tenancy matters (rent, cleaning, rubbish removal, tenant damage). If the parties are unable to agree on the refund of the bond, either party may make a new application to the Tribunal. Background
The parties signed a tenancy agreement recording a tenancy for a fixed term starting on 10 February 2024 and ending on 7 February 2025.
The premises were burgled on 26 April 2024. The items stolen included some of financial value and others which disclosed the tenants’ personal information.
The burglary caused the tenants to feel very anxious about their security so they asked if they could end the tenancy early. The landlords agreed to this in principle but said the tenants would need to cover the rent until new tenants were found and pay all costs to do so including agent time. This is usual when a landlord agrees to end a fixed term tenancy early.
The tenants were uncomfortable with the uncertainty of how long they may remain liable to pay rent and how much the additional costs might be. They researched their options and then made a written request to assign the tenancy, passing on the details of four sets of possible replacement tenants they had found.
The landlords required the tenants to agree to cover all costs related to any assignment including a between-tenants methamphetamine test. The tenants sought advice from Tenancy Services and then refused to agree to this, saying they had been advised that the landlord should meet the cost of methamphetamine testing.
In response, the landlord then refused to consent to the assignment and the tenants made this application.

What are the issues to be decided?

The issues to be decided are:- a. Are there grounds for the Tribunal to reduce the fixed term of the tenancy? b. If the term of the tenancy is reduced, should the Tribunal award the landlords compensation? c. Is it reasonable for a landlord to refuse to consent to an assignment of a tenancy because a tenant refuses to agree to pay for all costs, including methamphetamine testing? d. Has the landlord failed to maintain the premises in a reasonable state of repair and, if so, should the tenants be awarded compensation? The law on fixed term tenancies
A tenancy for a fixed term is a binding legal contract and, under normal circumstances 1 , cannot be ended by either party giving notice to the other.
In certain circumstances, the Tenancy Tribunal may make an order to reduce a fixed term tenancy; s66 RTA.
A landlord and tenant can agree to end a fixed term tenancy early; section 50(1)(d) RTA.
Also, a tenant has a legal right to assign a tenancy with the prior written consent of a landlord and in accordance with reasonable conditions attached to that consent by the landlord; section 43B(1) RTA.
An “assignment” of a tenancy is a transfer to a person of all of the rights that a tenant has under a tenancy agreement; section 2 RTA.
A landlord is entitled to recover from a tenant any expenses reasonably incurred in respect of an assignment or early ending of the tenancy; s44A RTA. 1 A fixed term tenancy can be terminated by the giving of notice in the specific circumstances listed in section 50(1) Residential Tenancies Act 1986 which include where premises are unlawful, uninhabitable, a tenant has been charged with assault on a landlord, or a tenant has withdrawn from the tenancy due to proven family violence.

Are there grounds for the Tribunal to reduce the fixed term of the tenancy?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
There has been an unforeseen change in the tenant's circumstances. The tenants were burgled and several items containing personal information were stolen. This included their passports, a laptop and all portable data storage devices in the house. Other items of financial value were also stolen.
I accept that the tenants would suffer severe hardship if the term of the tenancy is not reduced. The fact that their personal information has been taken causes the tenants to feel very vulnerable. They are anxious they will be burgled again. They said that they have only stayed overnight at the tenancy premises on a few occasions since the burglary, which was 5 months ago. [The tenant/s] has been particularly affected and said she could not bear to be at the premises on her own even during the day. She described panic attacks. The tenants have paid rent since the burglary although they have not felt able to live at the premises. They have been able to stay with friends and say that, if they are released from the tenancy early, they will continue to do so until they have found a new rental where they feel secure. I am satisfied that ‘hardship’ can be emotional as well as financial and that the extent of this would be severe if the term was not reduced.
The landlords will suffer inconvenience if the term is reduced but I am not satisfied that this will amount to hardship. The landlords’ representatives at the hearing said that there are two sets of prospective new tenants who could take over the premises promptly and who understand that the landlords intend to return to live in the house themselves in about February 2025. The agent confirmed those tenants have suitable references and that any financial issues can be overcome.
I find that the tenants’ hardship would be greater than the landlord’s hardship.
The term of the tenancy is reduced and now ends at 12 noon on 23 September 2024. If the term of the tenancy is reduced, should the Tribunal award the landlords compensation?
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) RTA.
The tenants are required to pay rent up to the day before the tenancy ends. I do not award additional compensation because I am satisfied the landlords have reasonable options for replacement tenants who the agent advises are available to move in soon after this tenancy ends.
I am satisfied it is fairest for the landlords to take the risk of any rent loss between tenancies. As I discuss below, the tenants did everything they reasonably could to arrange for an assignment of the tenancy, but the landlord refused to consent to this. Is it reasonable for a landlord to refuse to consent to an assignment of a tenancy because a tenant refuses to agree to pay for all costs, including methamphetamine testing?
It is important to also discuss the issue of assignment of a tenancy. This is where a tenancy is assigned to new tenants with the same terms and conditions. So, in this case, the new tenants would take on the rights and obligations of the fixed term tenancy ending on 5 February 2025.
A tenant has a legal right to request that a landlord consent to an assignment and that consent must not be unreasonably refused or have unreasonable conditions attached; s43B RTA.
I have included the relevant parts of section 43B RTA below as the wording is clear. 43B Assignment of tenancy by tenant (1) A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord. (2) ... (3) A tenant commits an unlawful act if the tenant assigns the tenancy— (a) without the prior written consent of the landlord; or (b) ... (4) If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4) commits an unlawful act. (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms. (8) A landlord’s consent must be taken to have been withheld unreasonably if the withholding of the consent is an unlawful act under section 12 (discrimination to be unlawful act).
My decision is that it was unreasonable for the landlord to require the tenants to agree to pay all costs (including a methamphetamine test) before the landlord would consider the assignment.
It follows that the landlords’ consent was withheld unreasonably. This breaches s43B(6) RTA.
It was unreasonable because a landlord has a right to recover any expenses reasonably incurred in respect of an assignment. A landlord does not have to seek a tenant’s consent to this.
The proper course of action is for the landlord to consider any application by prospective new tenants and, if the tenants are suitable, consent to the assignment.
Then, the landlord should follow the process in s44A(2) RTA which is to provide an itemised account of the expenses it says are reasonably incurred in respect of the assignment.
If the outgoing tenant disagrees with any of the expenses, such as a methamphetamine test, then the parties can apply to the Tribunal to have this issue resolved.
In other words, the priority is assigning the tenancy. Once this is done, then any disagreement about related costs can be dealt with.
Instead, what happened here is that the tenants advertised the premises online and, by 9 June 2024, had submitted the names and contact details of four sets of interested tenants by way of a link provided to them by the agent to the property management software.
The landlord did not contact any of the prospective tenants and did not respond to the tenants when they followed up on 19 June 2024. 2
This is a breach of s43B(4) RTA which is an unlawful act if done without reasonable excuse. If proven and intentional, exemplary damages (which are like a fine) of up to $1,500.00 can be awarded; see s43B(5) and Schedule 1A RTA. 2 The tenants supplied text messages between themselves and the four prospective tenants showing that names and contact details were supplied to the landlords by 9 June 2024 but that none of those were contacted by the landlord.
I have made a declaration that the landlord withheld consent to the assignment unreasonably.
For the avoidance of doubt, I have also made a declaration that section 44A RTA does not apply and the landlord cannot recover any expenses related to the early termination of the tenancy or reletting of the premises.
The reason for this is because s44A RTA does not apply when a tenancy has been reduced under s66 RTA.
Neither do I award compensation to allow for these expenses under s66 RTA because I consider it would be unfair to do so in this case. There was a good opportunity to assign the tenancy in early to mid-June, but the landlords refused to do so. The tenants have paid rent for that whole period. It would be unfair if they were also required to pay expenses. The tenants’ claim for compensation for maintenance breaches
The tenants’ said that they would withdraw their claim for compensation for maintenance breaches if they were successful in ending the tenancy without being required to pay compensation to the landlord. This offer was made so as to avoid a second hearing being needed.
The tenants’ application is therefore withdrawn.
The tenants are reserved leave to make a new application relating to maintenance breaches if the landlord files a claim relating to this tenancy in the future. Filing fees and suppression of names
The tenants are successful so the landlord must pay the filing fee.
The tenants’ names are suppressed from the published order, as sought.

Tenancy Tribunal case 4907735 — State of repair at Unit/Flat 3, 63 Rimu Street, New Lynn, Auckland 0600

At a glance

Tenancy Tribunal case 4907735 — State of repair at Unit/Flat 3, 63 Rimu Street, New Lynn, Auckland 0600

At a glance

Claims & awards

Order

Reasons

What are the issues to be decided?

Are there grounds for the Tribunal to reduce the fixed term of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What are the issues to be decided?

Are there grounds for the Tribunal to reduce the fixed term of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions