What was Tenancy Tribunal case 4935896 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4935896?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4935896?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4935896?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10668587-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4935896 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4935896?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4935896?

The primary dispute was Rent arrears. Related themes: 14-day notice, Cleanliness, Healthy homes, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4935896?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10668587-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4935896 — Rent arrears

Order

The application is dismissed.

Reasons

Both parties attended this video hearing on 5 August 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case the landlord must establish that what they are claiming is more likely than not.
The term “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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
The landlord has applied for termination of the tenancy, rent arrears, compensation, refund of the bond and reimbursement of the filing fee. Termination of tenancy
The landlord’s application was filed on 10 July 2024.
Section 55(1)(a) RTA provides that the Tribunal shall make an order terminating the tenancy where the rent was, at the date on which the application was filed, at least 21 days in arrears.
The landlord’s rent summary shows that early on the 10 th of July 2024, when the application was filed by the landlord with the Tribunal, the rent was in arrears by 21 days or more. During the course of the day, the tenant has paid $1,100.00 to the landlord. The rent was not in arrears by the equivalent of 21 days after the payment was made.
A tenant whose rent is 21 days in arrear at the date on which the application is filed, and who pays the rent on that date, may still have their tenancy terminated under s.55(1)(a) RTA (see Smith v Tautahi Porirua TT 720/95, 19 January 1996). The only discretion to not terminate the tenancy in these circumstances is where the rent arrears are paid in full as at the date of the hearing and the Tribunal is satisfied that it is unlikely that the tenant will fall into arrears again (see s.55(2) RTA).
The rent arrears have been paid in full by the tenant and I am satisfied that it is unlikely that the tenant will fall into arrears again. The application pursuant to s.55(1)(a) RTA is dismissed. Termination of the tenancy for breach.
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
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.
The tenant has breached their obligations by failing to pay the rent on time and in full.
The landlord served a 14-day rent breach notice on the tenant on 3 July 2024. The notice recorded that rent was in arrears in the sum of $1,650.00 and that the tenant had 14 days to pay that sum as well as any rent falling due prior to 19 July 2024. The tenant paid $1,650.00 to the landlord during the 14 day period, but failed to pay the rent as it fell due during that period, leaving $1,100.00 owing to the landlord for rent arrears. The tenant did not remedy the breach within the required period.
Having found that the tenant has failed to remedy the breach within the required period, I must now consider if it would be inequitable to refuse to terminate the tenancy.
The District Court in Terangi v Housing New Zealand Corporation DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following factors, as set out by Hammond J in Studio X Ltd v Mobil Oil New Zealand Ltd [1996] 2 NZLR 697 (HC), were equally relevant to a decision under s 56 RTA: • Whether the breach was advertent or deliberately committed. In such a case there are sound reasons why in the normal case relief should not be given : why should a lessor be compelled to remain in a relation of neighbourhood with a person in deliberate breach of his obligations? • Conversely, whether the breach was caused by inadvertence or was entirely beyond the tenant’s control. • Whether the breach involves an immoral or illegal use. It must be wrong in principle for a lessor to be forced into improper or illegal relations, possibly even exposing the lessor himself to some form of legal sanction. • Whether a tenant has made or will make good the breach of the covenant and is able and willing to fulfil his obligations in the future. • The conduct of the landlord. • The financial position of the tenant. • The gravity of the breach. • Whether a breach has occasioned lasting damage to a landlord. • “There is a proportionality concern. There has to be a concern with keeping an even hand. Afterall, a lease is both an interest in land and a contract and a Court ought not to estreat an entire interest of that character simply because (for instance) the tenant fails to repair (at a cost of $50) a window the tenant’s son happened to put a cricket ball through.”
In this case, I consider that the most relevant factor is that the tenant has now remedied the breach. It would not be a proportionate response to terminate the tenancy which has only 3 weeks left to run. The tenant should however be aware that a failure to pay rent on time and in full in future will almost inevitably see a further application being filed with the Tribunal by the landlord. The application under s.56 RTA is dismissed.
The claim for water rates arrears is dismissed as the water rates have now been paid in full.
The landlord has filed claims for cleaning and carpet cleaning. The tenant is required to keep premises reasonably clean and tidy (see s.40(1)(c) RTA).
The only evidence in support of this claim is a quote from Jim’s Cleaning. Normally, the Tribunal would expect to receive photographic evidence of the condition of the premises. The tenant said that in his opinion the premises were reasonably clean and tidy. The burden of proving the claim is on the landlord. I am not convinced on the evidence placed before me that it is more likely than not that the premises are not reasonably clean and tidy. The application is dismissed.
The landlord claims that the tenant has breached their obligations under the Tenancy Agreement by having a pet. I have reviewed the Tenancy Agreement filed by the landlord with the Tribunal. There is no prohibition on keeping a pet in the agreement. The application is dismissed.
The landlord claims that the tenant has breached their obligations under the tenancy agreement by allowing more than just the tenant and his daughter to reside at the premises. The tenant accepted that his partner and his son also live at the premises. Where a landlord considers that a tenant has breached the terms of the tenancy agreement, they should serve a 14 day breach notice on the tenant (see s.56 RTA).This gives the tenant 14 days within which to remedy the breach. A failure to remedy the breach can result in the Tribunal terminating a tenancy. The landlord has not served a breach notice on the tenant. The application is dismissed.
The landlord claims that the tenant has breached their obligations under s.40 RTA. The landlord says that areas of the bedroom have mould where mould has never previously been present. The landlord referred to visiting the house on one occasion and finding that the windows were not open so as to ventilate the premises.
The tenant says that there are two patches of mould in the master bedroom. He had sent a message to the landlord informing him of the issue. The tenant says that he has previously been in the house insulation business. He said that the mould appears to have been caused by a leak. He asked the landlord if he would like him to look at the area where he suspected a leak. The landlord declined the offer. The tenant said that windows were left open so as to ventilate the premises.
In this matter, the burden of proof rests with the landlord. It may be that the mould is caused by the leak. It may be that it is caused in part by a lack of ventilation. However, I have not received sufficient evidence to allow me to say that a particular action or inaction is the more likely cause of the mould. The application is dismissed.
The tenant applied for name suppression. The tenant has been substantially successful in this hearing and the suppression of the tenant name and details is ordered.
The landlord not having been wholly or substantially successful, I make no order for reimbursement of the filing fee.

Tenancy Tribunal case 4935896 — Rent arrears

At a glance

Tenancy Tribunal case 4935896 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions