What was the outcome of Tenancy Tribunal case 4908453?

The tribunal order states: The Tribunal declares that the tenancy of Ekaterina Serebryannikova of Unit/Flat

How much money was awarded in case 4908453?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $4,140.00 awarded to landlord

What type of tenancy dispute was case 4908453?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4908453?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10656237-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4908453?

The tribunal order states: The Tribunal declares that the tenancy of Ekaterina Serebryannikova of Unit/Flat

How much money was awarded in case 4908453?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $4,140.00 awarded to landlord

What type of tenancy dispute was case 4908453?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4908453?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10656237-Tenancy_Tribunal_Order.pdf.

Unit/Flat 11, 23 Tudor road, Henderson, Auckland 0610 Tenancy Tribunal Case 4908453 — Rent arrears

Claims and awards in Tenancy Tribunal application 4908453 — net $4,160.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of 1 August 2024	$4,140.00	Rent arrears as of 1 August 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,160.44
Total payable by Tenant to Landlord	$4,160.44

Claims and awards in Tenancy Tribunal application 4908453 — net $4,160.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of 1 August 2024	$4,140.00	Rent arrears as of 1 August 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,160.44
Total payable by Tenant to Landlord	$4,160.44

Order

The Tribunal declares that the tenancy of Ekaterina Serebryannikova of Unit/Flat 11, 23 Tudor road, Henderson, Auckland 0610, is a continuing fixed-term tenancy, and the tenant continues to hold all liabilities of a tenant in relation to those premises.
Ekaterina Serebryannikova must pay La Casa Property Management Limited as agent for Ilya Zharenikov $4,160.44 immediately, calculated as shown in the table below. DescriptionLandlord Rent arrears as of 1 August 2024$4,140.00 Filing fee reimbursement$20.44 Total payable by Tenant to Landlord$4,160.44

Reasons

The Tribunal must consider applications filed by both the tenant and landlord. The dispute relates to a fixed term tenancy, and whether this can be ended early, and following on from that finding, what the tenant’s liabilities would be.
Both parties appeared at the Tribunal in the Waitakere District Courthouse today.

BACKGROUND

The background to this matter can be summarised as follows: a. The premises are located on a complex comprising a number of similar but separate townhouses. b. On 18 January 2024 the tenant contacted the landlord interested in viewing the property. c. A viewing occurred on 19 January 2024, with the tenant viewing units 10 and 12 in this complex. The tenant submitted an application online, recording that the property she was applying for was unit 12. d. Following negotiation it was agreed that the tenant would rent the premises. e. The tenancy agreement was signed and returned to the landlord on 21 January 2024. Importantly, the agreement related to unit 11. The agreement was for a fixed-term tenancy commencing on 22 January 2024, ending on 20 October 2024. f. The landlord reports receiving a complaint from the tenant on 16 May 2024 that she was not happy with the neighbourhood and that she was starting to look for other properties. g. The property manager engaged with the landlord, who was open to putting the property on the market and then releasing the tenant on settlement following the sale. The tenant was not agreeable to that, advising she would go to the Tenancy Tribunal. h. On 6 June 2024 the Tenant applied to the Tribunal for orders i. On 13 June 2024, the tenant contacted the landlord to advise she had found that her dwelling was on the market for sale, stating this had not been raised with her, and she considered it grounds to give 28 days notice to end the tenancy. j. Also on 13 June 2024 the tenant’s car was damaged. Photographs indicate the damage was probably caused intentionally where the sides of the vehicle have been ‘keyed’. k. The tenant stopped paying rent, with rent having been paid up to 16 June 2024. l. The tenant moved out of the premises. m. On 1 July 2024 the keys for the tenancy were returned to the landlord. n. On 18 July 2024 the landlord filed an application with the Tribunal in relation to the tenant leaving the tenancy and for rent arrears.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

TENANTS CASE

The tenant states that in December 2023 she separated from her partner, and started looking for a rental property. There were limited properties, but in January 2024 she found via Facebook this property. The tenant then viewed two units, 10 and 12. The tenant liked unit 12, and following the viewing advised the landlord that was her preferred unit. The tenant then formally applied and was advised that her application was accepted.
The tenant referred to the ‘stage 1’ confirmation she received by email which referred to her application as being for unit 12.
The landlord then contacted the tenant advising that the unit that was to be offered was unit 11, which the landlord said was the same sort of unit. The tenant states the then signed the tenancy agreement, believing the unit was “exactly the same” as stated by the landlord.
However, when the tenant moved into unit 11 she found it was a much different unit, the layout was different, and the unit was much darker. The tenant says that she found unit 12 to be a light and bright unit.
The tenant says that when she raised concerns with the landlord, they said that she needed to ‘take it or leave it’.
The tenant further states that on 29 January unit 12 was sold, so it would be unlikely that the owner intended to rent that to her.
The tenant also said that there were problems with the neighbourhood, including damage caused to her car. Further there were difficulties with finding car parks particularly when other residents moved into the units.
Also the neighbouring building sites are used for the dumping of rubbish.
The tenant described conflict with neighbours smoking, playing music and that they had a dog.
The tenant said that when concerns were raised with the property manager, he confirmed that he would speak with the landlord about her moving out early, but ultimately the landlord was not accommodating of that, indicating that the landlord was looking to put the premises on the market, and that the tenancy may be able to end with that sale process.
The tenant advised that because of all of the issues she had at the tenancy, she decided to move out.

LANDLORDS CASE

The landlord states that the tenant was told that unit 11 was a mirror image of units 10 and 12, the only difference is that the odd-numbered units had rooms on the opposite side of the house. For example, if the kitchen was on the left in one set of units, it would be on the right in the others.
The landlord further says that the tenant was told there was no off-street parking.
In relation to ending the tenancy early, the landlord states they were open to negotiating an end to the tenancy early, but the tenant was not engaging in that.
The landlord notes that there is an equivalent unit to the tenancy, that is unit 7, and that is open and they are showing this to prospective tenants this unit, and if anyone was keen, then they would look at a specific viewing of the tenancy, unit 11.
Otherwise, the landlord disputes that the tenant has ended.

ANALYSIS

As far as the claims before the Tribunal are concerned, they are effectively the same. Both the tenant and landlord want the Tribunal to determine whether the tenancy can / should be terminated early, and following that finding, what the tenant’s liability is. The liability relates to obligations at the tenancy including rent arrears.
In this case the tenant wants the tenancy to end early, but she has not identified any particular legal basis for that. However the approach taken by Tribunals is to consider disputes in a non-technical way, and it is appropriate then that I consider what possible avenues may be available to end the tenancy early, and that is how I will proceed. Misrepresentation
It is possible that if I found the landlord had misrepresented the tenancy, the contract arising (the tenancy agreement) would become voidable meaning the tenant could cancel it if she wished. 1
The tenant argued that the property she was offered was unit 12 base on the confirmation email, but the property she was then offerred was unit 11. The tenant emphasised at the hearing that unit 11 was in her view significantly different in terms of its relationship with the sun. The tenant described the situation as follows: This unit [unit 11] does not face the same way, does not have the same natural light, and the layout is opposite, forcing me to readjust all my furniture plans. Unit 12 is also positioned higher so the view from the upstairs is nicer (you look more over a roof not into someones dead wall). Additionally, this unit is much darker, which affects our daily living conditions. The master- room is very sunny to the extend than when it is +20C outside it hits up to +30C, which means you need to invest to the additional air-conditioner to make it more bearable. The other room (nursery) on opposite never sees any sun and it is always cold. Leaving air-con downstairs working all day doesn’t make any difference for upstairs.
It is agreed that the unit the tenant viewed was unit 12, but the unit the tenant rented was unit 11.
Having considered the evidence available, in my assessment the likely situation is that the tenant viewed unit 12, but was aware that the unit she was to be renting would be unit 11. The landlord’s evidence which I accept, is that the tenant was told that unit 11 was an opposite image of unit 12, and that seems correct given the tenant has also described above the units as having an opposite orientation.
Plainly the landlord provided the tenant with a tenancy agreement for unit 11, which the tenant signed. 1 See section 37 of the Contract and Commercial Law Act 2017.
Furthermore, the tenants position at the hearing was not consistent with her written statement, where the tenant indicated that she intended to rent unit 11: After one month of endless searching and applications, viewing and rejections I saw a listing for my current place – 11/23 Tudor road. It was priced way above my budget but at that point I was so desperate. The agent showed me a place – it was what I was looking for my son, clean, dry and warm and due to my ordeal that’s all I cared about at the time. The agent said I can have it immediately which was perfect, when I asked about parking he said there is “ample” parking and there has never been a problem to find on street parking and as I came during weekday it looked like it is ok indeed . Back than I had no idea that the half of units was still unoccupied, I signed the agreement in desperation and the day I moved in came as a big surprise. When I walked into the unit it wasn’t the same I have seen and accepted, this was a tremendous shock to me and I just couldn't believe it. When I called my landlord he said that he changed his mind and I have to live in a different unit of his choosing again I was just dying inside so I asked why I cannot have what I was shown, accepted and been offered? The simple answer came – take it or leave it. I had signed the agreement already and I had movers coming in 30 mins. I was crying bitterly, I felt helpless and taken advantage of, I still feel as though I have been paying top dollar for something that was given to me that was not what was advertised! I had agreed on price I cannot afford ($630) in a desperate situation for a roof over my sons head only to find out that it was something else when receiving it. I feel as though I have been tricked from the beginning, promised something then taken advantage of because of my situation I had made him aware of in honesty but he dishonestly, knowingly took advantage of me. I have attached the e-mails stating that I have viewed and been accepted as tenant for unit 12 (the one I have been shown).
I consider it likely that the tenant would have been well aware that she was renting unit 11, and that the orientation would be different.
If it was that the tenant had believed she was signing an agreement for unit 12, then I would have expected to see communications with the landlord straight away when she realised they were different units or having different orientation, but no such communication has been provided. When I consider the communications that have been provided to the Tribunal, I have seen no evidence of the tenant raising with the landlord that she had concerns about being given the ‘wrong’ unit or the orientation.
Rather the evidence is that the tenant was simply not happy with the neighbourhood, and decided in May to start looking for somewhere else to rent.
The tenant has provided a transcript of messages she had with the landlord which do not support her having concerns about the orientation of the unit, or if she had been given the keys to the wrong unit. In that regard: a. On 23 and 24 January 2024 after taking possession of the tenancy, the tenant contacted the landlord asking how to turn on the hot water. b. On 28 January 2024 the tenant asked if rubbish bins had been ordered. c. On 15 February 2024 there were further messages about the bin.
It is not then until 16 May 2024 the tenant asked the property manager if he had any other properties available. The property manager replied on 24 May 2024 advising that the landlord would consider ending the tenancy if the property sold. Importantly, the tenant responded: If [the owner] does not want to meet in the middle and insists on sale first than leave plan than I have nothing but to go to the Tenancy Tribunal. I am a single mom paying expansive rent for unsafe dirty and noisy area. I hope he will reconsider. [sic]
In my view that is strong evidence that the issues taken by the tenant was not related to the tenancy dwelling as such, but she was not happy with the neighbourhood.
In summary, I do not accept that the landlord has misrepresented the tenancy. I consider it more likely than not that the tenant was aware she was renting unit 11, which was not identical to unit 12 that she viewed. It was open to the tenant to request a viewing of unit 11 before she signed the tenancy agreement, but ultimately it was also open to the tenant to rent unit 11 sight unseen which she did. Reduction of fixed term tenancy
The usual legal position with fixed term contracts, is that the term of the contract will be applied strictly, and it will only be in limited circumstances, that a decision maker like the Tribunal would interfere with that term. In the case of residential tenancies, one of these circumstances is found in section 66 of the Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements. That provision holds in part: On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
There is a high threshold that needs to be met before the Tribunal will reduce the term. In particular, the applicant will need to establish that: a. there has been a change in his or her circumstances; and b. that change was unforeseen; and c. that unforeseen change will result in severe hardship to the applicant if the tenancy is not ended; and d. the severe hardship the applicant would suffer if the term was not reduced exceeds the hardship the other party would suffer if the term was reduced.
Taking those legal considerations into account, I conclude that the tenant has not identified a change in her circumstances that would have been unforeseen. Again I consider the likely reason the tenant has decided to end the fixed term early, is primarily because she does not like the neighbourhood. That would be foreseeable, in the sense that the tenant had been to the complex when she viewed unit 12, and was able to make an assessment of the neighbourhood then.
In relation to conflict with the neighbours, when the tenant engaged with her neighbours, conflict arising from that may have also been foreseeable.
Without an unforeseen change in the tenant’s circumstances being identified, I can see no grounds to order a reduction of the fixed term tenancy under section 66. Landlord putting the premises on the market
While I accept that the landlord has put the property on the market, that is not a ground I could order termination of the tenancy.
If the property sells, then the tenant would have a right to give notice under section 58 of the RTA, but her unit has not sold at this time as far as I am aware.
Otherwise it is the case that section 47 of the RTA requires that the landlord give the tenant written notice if the premises are to be put on the market, but that provision does not then provide a right for the tenant in a fixed term tenancy to terminate the tenancy, just because the property is to be sold. If the tenant wants to pursue a breach of section 47 she would need to file an application on that, but it is not a matter before me, so I am not expressing a view on whether the landlord has breached section 47 that one way or the other.
So the fact of the property going on the market, is not a ground the tenant can then give notice, or I could order termination of the tenancy. Neighbourhood issues
Finally, the tenant has raised wide-ranging issues with her neighbours, and dissatisfaction or concern with the neighbourhood. There is no provision in the RTA allowing the tenant to give notice in a fixed term tenancy because of those neighbourhood concerns, nor could the Tribunal interfere with the term of the tenancy on that basis. Conclusion on ending the fixed term tenancy early
No legal basis for ending the fixed term tenancy early has been identified, so the Tribunal declares this is a continuing fixed term tenancy, so the tenant continues to have all the responsibilities of a tenant in relation to the premises, including the requirement to pay rent as it falls due. Rent arrears
The landlord has applied for an order that the tenant pay rent arrears, as the last payment only covered rent to 16 June 2024.
As of the date of the hearing (today) the tenant is behind in her rent by 6 weeks and 4 days, meaning the rent arrears today is $4,140.00, and that is ordered to be paid by the tenant. Where does this leave the parties.
Because the Tribunal has declared this to be a continuing fixed term tenancy, then the tenant continues to have all the obligations of a tenant. She must continue paying rent as it falls due.
Of course the parties can continue to negotiate an early end to the fixed term tenancy, and if an agreement can be reached, then the tenant’s obligations can end early.
I remind the tenant that at the end of the fixed term period (20 October 2024), unless she has given the landlord earlier notice, then her tenancy will roll into a periodic tenancy and she would continue to have the same obligations to the landlord, such as paying rent. The tenancy does not end just because the end date of the fixed term period arises.
Tenancy Services have very good general information that may assist the parties at this address: https://www.tenancy.govt.nz/ending-a-tenancy/ending-a-fixed-term- early/

FILING FEE

Because the landlord has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case only the tenant has applied for name suppression. Because the tenant has not had any degree of success, name suppression is declined. There is otherwise no basis to order tenant name suppression.

Tenancy Tribunal case 4908453 — Rent arrears at Unit/Flat 11, 23 Tudor road, Henderson, Auckland 0610

At a glance

Tenancy Tribunal case 4908453 — Rent arrears at Unit/Flat 11, 23 Tudor road, Henderson, Auckland 0610

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CASE

LANDLORDS CASE

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions