What was Tenancy Tribunal case 4925973 about?

The tribunal order states: The names of all parties and the address of the property is suppressed, The

How much money was awarded in case 4925973?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925973?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4925973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726896-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4925973 about?

The tribunal order states: The names of all parties and the address of the property is suppressed, The

How much money was awarded in case 4925973?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4925973?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4925973?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10726896-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4925973 — Cleanliness

Order

The names of all parties and the address of the property is suppressed, The location of the property may be referred to as being close to [redacted] University.
The Application for a reduction in the fixed term tenancy is dismissed.

Reasons

[Tenant 1], [Tenant 2] and [Tenant 3] are three of the five tenants who have a fixed term tenancy with [The landlord/s]. The other two tenants are [The landlord/s]’ daughter [Tenant 4], and another tenant [Tenant 5].
[Tenant 1], [Tenant 2] and [Tenant 3] have applied to reduce the fixed term tenancy.
The remaining tenants [Tenant 4] and [Tenant 5] oppose the application. They do not want the fixed term tenancy to end.
The landlords also oppose the reduction of the fixed term tenancy.
The tenancy is a 5 bedroom home close to [redacted] University. The tenants are all second-year students. Some of the tenants have known each other for some time, whilst other relationships between tenants were new. The relevant law
A tenancy agreement is a contract. When parties enter contracts, they are bound by the terms that they have agreed to. That is because the other party may make changes to their position in reliance of the other party fulfilling the promises that they have made in the contract.
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.
Section 66 of the Residential Tenancies Act (RTA) allows the Tribunal on application of any party to reduce the fixed term tenancy it says: (1) 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. (2) Where the Tribunal makes an order under subsection (1), the Tribunal may order that the applicant pay to the other party an amount determined by the Tribunal by way of reasonable compensation for any loss or damage to the other party which would result from the reduction in the term of the tenancy.
The questions to be determined are: a) Can 3 of 5 tenants apply for a reduction of the fixed term tenancy when two of the tenants oppose the application? b) Has there been an unforeseen change in the applicant’s circumstances? c) Did that change in the unforeseen change in applicant’s circumstances cause severe hardship? d) Is the hardship that would be suffered by the applicants greater than the hardship suffered by the other party? e) If the Tribunal makes an order reducing the fixed term should the Tribunal also award compensation to the landlord? If so, what is reasonable? Can 3 of 5 tenants apply for a reduction of the fixed term tenancy when two of the tenants oppose the application?
The tenants were all named in the tenancy agreement as tenants. Each tenant does not have an individual tenant agreement with the landlord they have a collective agreement where together they are the tenant/s.
[Tenant 4] and [Tenant 5] and the landlords submitted that there have been previous decisions in the Tribunal where the Tribunal has determined that all the tenants must seek to the end the tenancy, and that one or more tenants cannot seek to end the fixed term tenancy, when the remaining tenants wish to stay.
All those decisions refer back to a decision by Adjudicator Henwood in Derbyshire v Mark & Maggies Property Company Ltd Wellington 1 .
In that case two applicants (tenants) were bringing the application supported by a third tenant, the remaining other two tenants opposed the application.
The Adjudicator completed a thorough analysis of the applicable law, 2 which he caveated in his decision as not being clear. 3 He determined that the Tribunal cannot determine an application for a reduction of a fixed term tenancy pursuant to s66, when there is not agreement by all of the tenants (or conversely all the landlords) to seek a reduction in the fixed term tenancy. He further stated that this proposition was supported by the text on Residential Tenancies. Grinlinton Residential Tenancies Law and Practice (4th ed) at page 186, states that the Tenancy Tribunal has held that one of several co-tenants of a residential [fixed term] tenancy may not apply under section 66 to reduce the term in respect of their obligations. Similarly, the fact that one co-tenant has left does not constitute grounds for the remaining tenants to seek a reduction in the term pursuant to section 66. Unfortunately, however, the cases cited in support of these propositions are not available and the guidance must again be considered limited.
With the greatest of respect to my learned colleagues, I take a different position. The very nature and purpose of section 66 RTA is to allow any party (own emphasis) to a fixed term tenancy to make an application to reduce the fixed term. I say this for the following reasons: a) The section begins with the words on application by a party to a fixed-term tenancy, this is different to the wording of other sections in the RTA which refers to the obligations of landlord or tenant. If all the tenants had to agree, then I consider it would have said on application by either the landlord or the tenant. This is further supported by Parliament choosing to use the words on application by the tenant in subsection (3). That section was inserted in 2010 and I consider that had Parliament intended that only landlords (jointly) or tenants(jointly) could have made an application to the Tribunal under s66(1) then they would have legislated for that in 2010. b) The section is one where the Tribunal is required to balance the competing interests and hardships of all the parties, that means the Tribunal must determine the effect on all the tenants and landlords before making a determination. 1 Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN. 2 As above paragraphs 4-17. 3 He notes that there is limited guidance in paragraph 4, and also notes that the RTA is silent on this point. c) The Tribunal must also consider s85 which requires: Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. It would be unfair to prevent joint tenants (or joint landlords) from making an application or not to consider an application for a reduction of the fixed tern tenancy merely because their co-tenant or co- landlord did not agree. If this was the case, then a joint tenant who was diagnosed with a terminal illness who wanted to go back home to her parents, but her other tenants did not want to end their tenancy, would not be able to bring a claim. Likewise, a tenant who had to move out to care for a sick relative could not seek to reduce the fixed term tenancy. To interpret the law in this rigid manner would allow injustices and in equities; for example, it may give a controlling partner who has a joint tenancy a mechanism to stop their co-tenant from leaving. d) I consider the purpose of s66 was to give the parties a mechanism to terminate such tenancies. There is ability of the Tribunal to allow compensation to all affected parties if it reduces the tenancy. e) There appears to be no authoritative determinations on this point from a higher Court. I appreciate that this will leave applicants and respondents in the position where there are now two strands of determination in the Tribunal.
I accept that the nature of the joint and several tenancies means that I cannot reduce the term or terminate the tenancy for only the applicant/s that applies, if I am satisfied that the tenancy should terminate then I must reduce the term in the tenancy agreement or terminate the total tenancy.
I consider that for the reasons I have outlined above, I can hear and determine [Tenant 1]’s, [Tenant 2]’s and [Tenant 3]’s application for reduction of a fixed term tenancy. Has there been an unforeseen change in the applicant’s circumstances?
Unforeseen means unexpected, without warning, or the reverse of “foreseen”, not liable to result, unlikely not a serious possibility, not a real risk. 4 4 Stewart Benson Residential Tenancy Law in New Zealand, Thomson Reuters [2018].
The three applicant tenants say that there has been an unforeseen change in their circumstances because they do not trust one of the remaining tenants, which made them feel unsafe in their home.
The applicant tenants say that this distrust stems from an incident on 14 February one of the tenants says she was sexually assaulted by a person who lived two doors down. There was some dispute at the hearing about the nature of the incident, but I am satisfied that something occurred that evening that made the tenant feel unsafe as that is what she communicated with a friend and that friend asked Campus watch to find the tenant and retrieve her from the situation which they did. I note that the tenant did not report the incident to the Police or take the matter any further with the University, but I am also mindful of many victims of the assaults do not report those assaults to authorities.
She told her flatmates about the situation, and they agreed that they would not invite the occupants of that flat to an upcoming party that they were going to host. (Four of the tenants remember agreeing that they agreed that no-one from that flat would be allowed to come over to the flat).
The tenants’ party did not go ahead but shortly after the incident, another tenant ([Tenant 5]) invited a girl from the banned flat who she was friendly with over for a flat tour. This upset the three applicant tenants, because the tenant pointed out where each person’s bedroom was. It made them feel unsafe and distrustful of her.
The three tenants also say that they felt unsafe because [Tenant 4] and [Tenant 5] had let in people, into the house that none of the flat knew during orientation week and that [Tenant 5] continued to fraternise with tenants from the other flat.
The tenant who had experienced the alleged assault says that the assailant’s flatmates who lived two doors down became abusive towards the tenant if she walked past, they called her names, and on one occasion threw bottles at her. She says she felt extremely unsafe. She told her flatmates about the situation but did not tell [Tenant 5] because of [Tenant 5]’s friendship with people in the flat. It was clear that by this stage she felt that [Tenant 5]’s friendship with the other flat made her feel unsafe in her home. [Tenant 5] and the other tenant were not speaking to one another.
I am satisfied that the alleged assault on the 14 February and the subsequent abuse by the neighbours were an unforeseen event.
I do not regard the other behaviours complained about by the tenants, fallings out with each other, noise, coming home at different hours of the day and night, food being eaten by another, to be an unforeseen event. Unforeseen means unexpected. I consider that in a flat of five second year university students, that these behaviours would be normal complaints. Put another way it would be expected in a flat of five people who had not flatted together before, that there would be some issues around noise, schedules, cleanliness, sharing of food, drinking or not, friends coming over. It is also completely normal and expected that not all flatmates would get on with one another and there would be a clash of personalities.
I also do not regard [Tenant 5]’s friendship with a person from the other flat to be an unforeseen event, when tenants flat with each other they can expect that they will have friends and acquaintances that they do not like, or want in their home, but that is a normal consequence of being in a flatting situation. If you choose to live with someone in a share house situation, then it is entirely foreseeable that your flatmates may not share the same friends as you and may invite people to your home that you do not want there. I note that [Tenant 5] did not invite the assailant to the home and that she was clear that she never would and had promised that to her flatmates. Did the unforeseen change in applicant’s circumstances cause severe hardship?
Severe hardship has been described in previous Tribunal decisions, as rigorous harsh and not negligible, it is more than ordinary hardship. The severe hardship must also result from the unforeseen change.
The applicant tenants say that they were forced to move because they felt unsafe and that they were upset with [Tenant 5] conduct.
The complicating factor in this matter is the length of time between the unforeseen event (the alleged assault and the abusive neighbours) Those events occurred in February and March the application was not made until June 26.
The date of the application was 5 weeks after the tenants had already moved out (17 May 2024) and entered into another fixed term tenancy for another home.
In the communication with the landlord asking to be released from their fixed term tenancy in March the tenants do not mention the unforeseen event that had already happened, as the reason for terminating the fixed term tenancy. Their email said; Regrettably, due to the persistent conduct of another tenant, our living environment has been significantly disrupted. As you are aware, maintaining a peaceful and cooperative living environment is essential for all tenants. Despite our best efforts to address the issue internally through many conversions (one-on-one and flat inclusive), the disturbances caused by [Tenant 5] have continued, creating an untenable situation for the rest of us. These disturbances include: a. Throwing parties without notice. b. Having guests, including strangers, for extended periods, including late into the night. These guests have caused excessive noise, are disrespectful to other tenants, and there have been instances of such guests entering another tenant’s room, and stealing food. c. Yelling at and insulting other tenants. d. Creating distressing environments by weaponizing other tenant’s personal issues to manipulate them into agreement with her. e. Creating large messes and failing to clean up after herself, resulting in other tenants cleaning up after her. f.Being loud and disruptive when other tenants are trying to sleep, despite being asked to lower her volume. g. Sharing personal information spoken about within the flat with outside parties, even if she was not directly involved in the conversation. Many of these disturbances accumulated around the first two weeks of tenancy. Some behaviours, such as parties, have ceased or significantly reduced. However, other behaviours persist and are worsening as time progresses, including lack of cleanliness, yelling at and insulting other tenants, sharing personal information, and inviting guests into late hours. These disturbances have created an unwelcoming environment at the residence. Unfortunately, many of the other tenants will avoid coming home to be free from such disturbances. Regrettably, [Tenancy address suppressed] is less-so our home and more-so a place of anxiety and stress. We are unable to live comfortably; having to lock our rooms when guests are over or when we are leaving the house, engaging in conversation only when she is not present (as to avoid the spread of information or verbal assaults), and being unable to focus on our studies due to noise disturbances. Considering the gravity of the situation, three of us tenants, (names redacted) have decided that it would be best for us to terminate our fixed-term tenancy agreement early.
The landlord immediately responded saying that these reasons were not enough to terminate a fixed term tenancy. They encouraged the tenants to work together to find resolution.
The landlord was not told of the alleged sexual assault or the abuse from the neighbouring flat until after the three applicant tenants moved out in May.
I am not satisfied that the applicant tenants have suffered severe hardship resulting from the unforeseen event, I say this for the following reasons: a. The severe hardship complained about is the applicant tenants have had to pay two rents and this has caused them extreme financial distress. I understand that they are suffering that distress but I do not consider that it was because of the unforeseen event. I consider that on the balance of probabilities it was a result of the breakdown in the relationships between the flatmates, which as mentioned above is a foreseen event. b. I accept that the applicant tenant who had been the victim of the alleged assault and the abuse felt unsafe and traumatised by those events regarding the neighbour but she confirmed at the hearing that she left as a result of the non- resolution of the flatmate situation. The flatmates had been asked to attend mediation and when they could not agree on a suitable time that is when the applicant tenants moved. I have seen the group chat messages about going to mediation, and they are to try and resolve the breakdown in the relationship between flatmates and concerns about the behaviour of the flatmates at the property. The three applicants confirmed at the hearing that had the other tenants attended mediation then they may have been prepared to consider staying at the property. Therefore, the conclusion that I have reached is that the reason to move was due to the ongoing flatmate situation not the events with the neighbouring property. c. Even if I am wrong about that, then I consider that the severe hardship from the unforeseen event only relates to the tenant who was the victim of the alleged assault and abuse, not the other flatmates. d. The severe hardship, having to pay two rents is not unforeseen. The tenants should have known at the time that they were entering into new fixed term tenancy before being released from the other then they were taking a significant risk. They should have applied for a reduction of the fixed term before taking another tenancy.
In making this decision, I do not intend to diminish or downplay the effects of the alleged assault or abuse on that tenant. The effects of such events are traumatising on a young woman, and had that tenant sought to be released from the fixed term tenancy solely and advised the landlord of the reason, I am confident that the landlord would have allowed it. I am also confident that the Tribunal would have allowed it at that point. This would have been relatively easy, the remaining tenants could have covered the rent, a replacement tenant would have been easier to find (especially at the beginning of the university year), or the landlord could have reduced the rent.
The landlord has been open to and allowed assignment of the tenancy, but to do date the applicant tenants have been unable to find replacement tenants. At the hearing the applicant tenants complained that the landlords or the remaining tenants were not acting with urgency in finding or assisting replacement tenants, but the evidence does not support that. All the replacement tenants have been followed up, but they have often found other places to live, or they delay or don’t get back to the landlords or remaining tenants.
Even if I had found that the tenants’ hardship was caused by the unforeseen event, I record that I would not have found that the tenant’s hardship is greater than the landlord’s hardship if the term is reduced.
The landlord purchased the property last year with 100% finance. They set the rent at a modest amount and top up the mortgage payments each week themselves by $200.00. If they do not receive rent from the remaining tenants, then the say that they would have to finance $740.00 per week a total of $14271.00 till the remainder of the tenancy which they cannot afford.
I do not consider that the landlord should be asked to bear such a significant cost, especially when there were other alternatives offered to the tenants such as finding a replacement and then moving out.
The remaining tenants should also be considered. They cannot afford to meet the shortfall of rent and to require them to do so would essentially make them insolvent.
For the reasons given above the tenants’ application for a reduction of the fixed term tenancy is declined.
The law is a blunt instrument, it allows me to either find that there are grounds for a reduction or not, it does not allow me to reduce the rent or vary the terms of the tenancy, in these circumstances and that is why I have not done so.
I appreciate that this decision will have significant impact on the lives of three young women. I have carefully considered thoroughly all the evidence provided by both parties before determining the matter. Young people entering into fixed term contracts at university must understand that the requirements to reduce a fixed term tenancy are a high bar. The front page of this tenancy agreement warned the tenants about the ramifications of entering into a fixed term agreement it said:
Anyone advising students on what to do in this situation, should make it clear that tenants seeking to be released from a fixed term tenancy should first ask their landlord in writing and set out the reasons why they want to be released. If the landlord does not release them, then they should apply immediately for a reduction of the fixed term to the Tenancy Tribunal. If they need to leave the property in the meantime, then they should not enter into another fixed term agreement until they are certain that they have been released from the original. Suppression.
I consider that there is public interest in having the decision published because it is important for the public to understand what needs to be proven in order for the tribunal to consider a claim for reduction of a fixed term tenancy. But I do not consider that there is any public interest in naming the tenants or the landlords. The tenants and landlords name will be suppressed, and the address of the property will be suppressed. The property may be referred to as being close of [redacted] University.

Tenancy Tribunal case 4925973 — Cleanliness

At a glance

Claims & awards

Tenancy Tribunal case 4925973 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions