Published tribunal order
Tenancy Tribunal case 4921261 — Tenancy dispute at 14 Martindale Lane, Tuakau, Tuakau 2121
Decided 11 Jul 2024 · Published 11 Jul 2024 · Application 4921261
Party names are redacted in the official published order.
Order
- The term of the fixed-term tenancy of [The tenant/s] at 14 Martindale Lane, Tuakau, Tuakau 2121 is reduced and now ends at 11.59 am on Friday 26 July 2024.
- The tenant is to pay compensation to the landlord for the reduction in the fixed term in the sum of $2,480.00 immediately (s.66(2) Residential Tenancies Act 1986).
Reasons
- Both parties attended this video hearing on 10 July 2024.
- The tenancy is a fixed term tenancy commencing on 30 December 2023 and ending on 30 December 2024.
- The tenant wishes to have the fixed term reduced.
- The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s. 66 Residential Tenancies Act 1986 (“RTA”), which allows for the reduction of fixed term tenancy agreements.
- There is a high threshold 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 their circumstances. b. the change was unforeseen. c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced. d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
- Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
- The weighing of relative hardship is a question of fact to be assessed objectively in each case. Evidence
- The tenant says that the unforeseen change in circumstances has occurred due to security concerns.
- The tenant says that on the evening of 6 January 2024, she was at home with her partner. Her partner heard a noise coming from outside the ranch slider. It would have been clear to anyone outside the house from the lights and noise from within the house, that the residents were at home. The tenant’s partner went to the ranch slider and discovered an unknown person attempting to gain entry through the ranch slider. Upon being discovered, the unknown person has left the premises.
- The tenant called the police. The police attended, but there was no sign of the intruder. The tenant was clearly and quite reasonably upset by the incident.
- The tenant also complained about the actions of a neighbour at an adjoining house. The tenant says that whenever she looks to the rear of the property the neighbour is looking into their property. The neighbour does not say anything or waive. The tenant said that she found this unsettling.
- The tenant said that she had experienced issues with window security latches. She said that damage to the latches suggested that someone was attempting to gain entry. She said that neighbours had experienced the same issue.
- Over the last three months latches to gates giving entry to the rear of the premises have been broken. The tenant has used cable ties to secure the gates.
- On one unspecified date, the tenant said that she could hear someone trying to force open the security latch to the bedroom window and that she could hear them run off when discovered.
- An attempt was made during the course of the tenancy to break into a neighbour’s car.
- The tenant says that in attempt to have more security, she has installed two security cameras and always leaves both interior and exterior lights on. This has resulted in a greatly increased electricity account.
- The tenant says that she has reported incidents to the Police on three or four occasions.
- The landlord said that previous tenants had not experienced any issues. The premises have a 2 metre high fence surrounding three sides of the premises.
- They agree that the tenant reported the incident on 6 January 2024 to them.
- They next spoke to the tenant on or about 10 February 2024. They asked the tenant’s partner how the tenancy was progressing. He said, “no problems, happy as.” In the landlord‘s view, the incident of 6 January 2024 was a” one off”.
- At a later inspection on 6 June 2024, the tenant spoke of putting pictures on the wall which the landlord interpreted as a sign that the tenant was happy with the tenancy.
- The landlord said that if the level of intruder activity was as high as suggested by the tenant, it was surprising that the two security cameras had failed to detect anyone. Analysis
- To be successful, the tenant must first establish that their circumstances have changed during the tenancy. Section 66 RTA does not apply where the circumstances existed at the outset of the tenancy but were not discovered until after the tenancy commenced. Thus, for example, it may not apply where the rent, from the outset, was too high or where the tenant entered into the tenancy in the mistaken belief that it could be terminated as if it were a periodic tenancy despite it being a fixed term tenancy.
- Section 66 RTA requires that the change in circumstances was unforeseen. What is meant by “unforeseen” in the context of s. 66 RTA was discussed by the Tribunal in Bond v Tang Invercargill TT 09/583/IN, 25 August 2009 at [18] where the Tribunal concluded that: “The term ‘unforeseen’ is a legal term defined by reference to the reverse (‘foreseeability’) in cases relating to negligence (in determining whether a duty of case is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts there is a body of case law which has established that: “a) foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; “b) an outcome is foreseeable in legal terms if it is ‘liable to result,’ ‘not unlikely’, ‘quite likely’, a ‘real danger’, a ‘serious possibility’, or a ‘real risk’; “c) the term ‘unforeseen’ has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as ‘unexpected’ and ‘without warning.’ In a legal context, it must also be taken as a reverse of what is ‘foreseen,’ thus being ‘not liable to result,’ ‘unlikely’, ‘not a real danger’, ‘not a serious possibility’, or ‘not a real risk’.”
- The tenant said that prior to making the decision to move into these premises she asked the landlord about the safety of the area. The landlord said that she was not aware of any issues.
- The Tribunal has previously found that a number of burglaries at the premises would amount to an unforeseen change in circumstances (see Abbott v Layton Holdings Ltd TT Christchurch TT09.2803 4 August 2009.
- The incidents raised by the tenant include an attempted break in on 6 January 2024, and a number of attempts to enter the premises. I do not include car theft in my consideration as it was not the tenant’s car and I do not include the actions of the neighbour. Those actions may be disconcerting for the tenant, but no crime has been committed.
- Had the incident on 6 January 2024 been the sole incident complained of, I would have considered it a one off and dismissed the application. A landlord cannot be expected to prevent every potential crime from being committed.
- I consider that the range of incidents complained of by the tenant are sufficient to amount to an unforeseen change in circumstances. The tenant is entitled to feel secure in her home.
- Will the unforeseen change result in a severe hardship to the tenant if the tenancy is not ended?
- The tenant explained that she and her daughter experienced trouble sleeping as a result of the trauma experienced. The electricity costs had increased due to having the lights on at all times.
- The hardship experienced by the landlord if the term is reduced is a financial one. The landlord said that they had two rental properties and that the borrowing secured against this property was substantial. They relied on the rent to meet their mortgage commitments.
- Having balanced the severe hardship to the tenant and the hardship to the landlord, I consider that the extreme hardship to the tenant if I do not reduce the fixed term, is greater than the hardship experienced by the landlord if I do reduce the term.
- The tenancy is reduced and will end at 11.59 am on Friday 26 July 2024.
- Section 66(2) RTA allows the Tribunal to order compensation to be paid by way of reasonable compensation for any loss or damage suffered by the landlord as a result of the reduction in term.
- The landlord said that they estimated that it would take four to six weeks to find a replacement tenant and that they would have to pay the usual costs associated with reletting the premises. Taking those factors into account, I consider it reasonable for the tenant to pay compensation to the landlord and I order the tenant to pay the equivalent of four weeks rent ($2,480.00).
- Both parties applied for name suppression. The tenant has been wholly successful in this matter and suppression of the tenant’s name is ordered. The landlords have been substantially successful by way of an award of compensation and suppression of the landlord names is ordered. I make no order regarding the address of the premises.