What was Tenancy Tribunal case 4963676 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,167.00 immediately, calculated as

How much money was awarded in case 4963676?

Filing Fee: $27.00 awarded to tenant; Moving Truck: $240.00 awarded to tenant

What type of tenancy dispute was case 4963676?

The dispute type was not classified.

Where can I read the official tribunal order for case 4963676?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11051984-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4963676 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,167.00 immediately, calculated as

How much money was awarded in case 4963676?

Filing Fee: $27.00 awarded to tenant; Moving Truck: $240.00 awarded to tenant

What type of tenancy dispute was case 4963676?

The dispute type was not classified.

Where can I read the official tribunal order for case 4963676?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11051984-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4963676 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4963676 — net $1,167.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Moving truck	$240.00	Moving truck
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,167.00
Total payable by Landlord to Tenant	$1,167.00

Claims and awards in Tenancy Tribunal application 4963676 — net $1,167.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Moving truck	$240.00	Moving truck
Bond refund	$900.00	Bond refund
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,167.00
Total payable by Landlord to Tenant	$1,167.00

Order

[The landlord/s] must pay [The tenant/s] $1,167.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing on 24 October 2024. The landlord was represented by one of the property managers.
On 6 August 2024, the tenant applied to the Tribunal, claiming a refund of the bond and rent paid ($1,320.00) reduction of a fixed term tenancy, and compensation of $240.00 for moving costs. Background
A residential tenancy agreement was signed on 29 June 2024 for a fixed term from 26 July 2024 to 26 July 2025.
The tenancy address comprises a large house of 255m² on a 728m² section. The house has 4 bedrooms and 3 bathrooms, including a 1-bedroom unit above the garage. The unit is accessed up some steps at the side of the garage from ground level to the first floor.
The tenant intended to rent the unit. The main house had other occupants. The tenant said the tenancy came with two parking spaces.
The premises are constructed on a moderate to steep downwards slope and the parking for the unit is at the bottom end of the driveway.
The key events were as follows: • At about 6pm in the evening on 26 July 2024, the tenant attempted to move some of his belongings into the premises. He found a car parked outside the garage and another car at the end of the driveway blocking his access. • The tenant spoke to the landlord, who requested that the occupants of the main house move their vehicle. • The tenant returned later that night, at about 9.50pm. He found a truck in place of the car at the end of the driveway. • When the tenant arrived the next morning, at about 8.45am, he was unable to gain access to his parking because the truck was still blocking the parking area. • The landlord tried to call the landlord but could not get hold of him. The tenant did not attempt to knock on the door of the main house to ask the occupants to move their vehicle. • The moving company had another job to complete, so the tenant returned his belongings in the truck to his existing tenancy, which was due to expire that day. • The landlord called the tenant at about 10.30am, after the moving truck had left. The landlord and tenant met at a café and the tenant asked to terminate the tenancy and return the keys. The landlord said he would check with the owner about what had happened.
In the afternoon on 27 July 2024, the tenant stated in an email (in part): After going through unnecessary inconvenience for two days in a row, we have lost trust in this tenancy agreement, given that we had no access to the property’s designated car park even after paying the bond and rent timely to move in. We did everything possible in our capacity to uphold the agreement and move in, but the same effort was not made from your end.
The next day, 28 July 2024, the landlord and tenant met at the premises and the tenant returned the key.
In an email dated 29 July 2024, the landlord declined to refund the bond and rent, and stated (in part): After examining the lease agreement, we found that this issue does not warrant cancellation of the contract. Additionally, we have invested considerable time in listing the property and arranging viewings. We also held the premises for four weeks as agreed, and cancelled a couple of applications received for the property to accommodate you.
In an email dated 1 August 2024 the tenant stated (in part): We were legally entitled to take possession of the premises on July 26 th , 2024, as per our tenancy agreement. As the landlord, it is your responsibility to ensure the premises which includes the designated parking spot are vacant as per [the Act], section 37.
On 5 August 2024 the landlord replied (in part): We cannot accept your inability to move your belongings as a valid reason for rescinding the agreement. Returning the key was your decision.
Following the hearing, the Tribunal received a written statement from one of the landlord’s property managers (Mr G) who was also involved in the events described above and had most of the contact with the tenant.
Mr G said the tenant was granted early access and received the keys on 23 July 2024. In response, the tenant provided a text message which indicated that the keys were left at the premises for the tenant to collect on 25 July 2024. Relevant Law
Section 37 of the Residential Tenancies Act 1986 (the Act) requires the landlord to provide vacant possession of the premises on the date the tenancy commences. In this section, “premises” does not include “facilities”. “Premises” are defined in section 2(1) of the Act as including land and appurtenances (i.e., rights). “Facilities” are defined as meaning all facilities provided for the non- exclusive use and enjoyment of the tenant, otherwise than as part of the premises that are subject to the tenancy agreement. Facilities include any land or buildings intended for use for the parking of vehicles.
There are cases which have said that vacant possession is an essential term which, if breached, is serious enough to justify termination of the tenancy. Whether a term is essential is a question of interpretation of the contract. It has been said that a useful test is to ask whether the term is of such importance that, unless the term was agreed at the time of contracting to be essential, the cancelling party would probably not have entered into the contract (Mana Property Trustee Limited v James Developments Limited [2010] NZSC 90).
Vacant possession includes being free from the landlord’s goods, if the tenancy is not a furnished tenancy (Kiwi Global Education Ltd v Seo (DC Christchurch CIV-2009-009-1973, 7 December 2009)).
The Tribunal has also found that the landlord did not give vacant possession at the start of the tenancy where the previous tenant’s belongings were in a shed at the back. The tenants were entitled to cancel the agreement (Shopland & Woods v McConnell & Wadman [2020] NZTT Auckland 4264636).
Pursuant to section 66 of the Act, 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. Analysis
The Tribunal heard from 2 witnesses, the tenant’s partner (Ms L) and a friend (Mr S). There were some differences between what the witnesses said and what the tenant told me about parking outside the house at the top of the drive, near some trees.
However, both witnesses said it was not possible to park down the driveway on 27 July 2024 so the tenant could move into the premises. Ms L said the combination of a car parked outside the garage and a truck parked in their parking area meant the driveway was inaccessible. Mr S said the moving company parked on the road because there was not enough space to get down the driveway. Both said that the part of the driveway that was accessible was on a steep slope, and it would not be safe to try and unload there.
The landlord’s representative acknowledged that there was only space for 2 cars at the bottom of the driveway and that a truck could block access. Although it is hard to imagine that there was nowhere on the driveway where the tenant could park to unpack his belongings, ultimately, I must accept the evidence that it was not possible to access the tenant’s parking spaces and there was nowhere else on the driveway where it was possible to park and safely offload. It is notable that the moving company’s employees seem to have taken the view that going down the driveway should not even be attempted.
The next issue is whether the lack of access on 26 and 27 July 2024 was a breach of the landlord’s obligation to provide vacant possession. In my view, vacant possession means that the tenant should be able to take possession - i.e. exercise the right to lawfully use the premises - without interference from the presence or belongings of the landlord or any third person. This right to vacant possession must, I consider, extend not only to the residential dwelling, but also to other land included in the tenancy and rights associated with it.
Although non-exclusive facilities are excluded from section 37, the car parks in question were meant to be exclusive to the tenant and therefore, were not “facilities”. The right to exclusive car parks was an implied term of the tenancy agreement, and the tenant’s inability to use them when the tenancy had started was, I find, a breach of section 37 of the Act.
The final question is whether this breach entitled the tenant to terminate the tenancy. As noted above, there are Tribunal cases where the Tribunal has said that, if the tenancy cannot commence on the date given in the tenancy agreement, then this is a “fundamental breach”, and the tenant has a right to cancel the contract. In Caldwell v TLC Property Management Ltd (TT 1084/1, 7 June 2001) the Tribunal observed:

If a tenant did not have this right how long would she have been required to wait?

What if the tenant in possession simply refused to leave, and the landlord had to apply to the Tenancy Tribunal to regain possession. Would the tenant have to wait for the 3- 2 weeks [sic] it would take for the landlord to regain possession. I think not. The Act says that the tenant “shall have vacant possession on the date on which...the tenant is entitled to enter into possession of the premises”. A failure by a landlord to meet this requirement is a fundamental breach.

The term “fundamental breach” reflects older terminology used at common law. Under the Contract and Commercial Law Act 2017 a contract may be cancelled for misrepresentation, repudiation, breach of an essential term, or where the breach substantially affects the benefit or burden of the contract. In deciding whether a term is “essential”, the Courts have sometimes used a test previously applied at common law to determine whether there had been a “fundamental breach”. It has been said there is a fundamental breach when the breach “goes to the root of the contract”.
In Kiwi Global Education Limited v Seo & Shim (DC Christchurch, CIV-2009- 009-001973, 7 December 2009) the District Court considered the application of section 56 of the Act (termination for breach) to a situation where the tenant found, on moving in, that the premises were, contrary to the terms of the tenancy, fully furnished. The Court found that there had been a breach of section 37 and that the breach justified termination under section 56: The tenants were anxious to occupy the premises without delay. They had their own contents sent from Korea with nowhere to house them. Mrs Seo was due to have a baby. They were in no position to endure protracted arguments over the terms of the tenancy and the removal of chattels. The inability of the landlord to respond quickly to their demand that the chattels be removed rendered the breach incapable of remedy and to refuse to make an order terminating the tenancy would be inequitable.
The Court held that the Act is a Code, and the basis for termination had to be found within the Act. I note that, in addition to section 56, the Tribunal may make any order that the Courts may make under any legislation or rule of law relating to contracts (section 78(1)(h)). This means the Tribunal has jurisdiction to apply the cancellation provisions in the Contract and Commercial Law Act 2017.
In this case, the landlord did not repudiate the contract, and it was not suggested there had been a misrepresentation. I also accept that the landlord tried to help the tenant to move in. There was, nonetheless, a breach of section 37 of the Act. At the date of commencement, the tenant did not have vacant possession of the premises included in the tenancy, which included parking for two cars at the bottom of the driveway.
I do have some reservations about the view that any breach of section 37 entitles a tenant to cancel the contract. Unlike other obligations imposed on landlords, breach of this provision is not an “unlawful act” which may justify the award of exemplary damages. This might suggest it is not of significant importance.
On the other hand, the question is not whether Parliament saw the obligation to provide vacant possession as essential, but rather, the importance of the term to the tenant. If the tenant had been asked before he signed the tenancy agreement whether he would be willing to rent the premises without a right of vacant possession at the commencement date, I consider the tenant would probably have declined to sign the contract. The difficulty with this test is that the same could be said of various other obligations imposed on landlords under the Act.
There is another way in which the right to vacant possession can be seen as essential. As noted in Caldwell, if a tenant had to show, before exercising a right of cancellation, that the breach had serious consequences, they would have to endure not being able to move in (and the possibility of being homeless) for an indeterminate period, until the consequences of the breach were serious enough to justify termination. In many cases that would be an undesirable approach to section 37 of the Act.
The practical reality is that a tenant who has not been provided with vacant possession at commencement of the tenancy may be deprived of somewhere to live. In that event, the breach “goes to the root of the contract”, given that the essence of a residential tenancy is a right of occupation. In such circumstances, the obligation to provide vacant possession on commencement of the tenancy should arguably be treated as an essential term, so that, even if the breach has minimal effect immediately, the tenant is entitled to cancel the contract.
In this case there is a further reason for finding that the tenant exercised a right of cancellation. Even if provision of vacant possession was not essential on 26 July 2024, it must have been essential the next day, because the landlord had been warned that the tenant could not gain access and would be returning the following day with a moving truck. Time for compliance with section 37 had been made of the essence and any further breach provided grounds for termination (Behzadi v Shaftesbury Hotels Ltd [1991] 2 All ER 477, CA).
It is unnecessary to consider section 56 of the Act, which was relied on in Kiwi Global Education Limited. As in Caldwell, the distinguishing feature of this case was the repeated failure over several days to provide vacant possession, justifying cancellation. I would add that section 56 requires an application to the Tribunal and was not a provision the tenant could have relied on immediately.
For completeness, I have considered section 66 of the Act. The tenant’s inability to move in was certainly unforeseen when he signed the tenancy agreement in June 2024. I am prepared to assume that holding the tenant to the tenancy until July 2025 (or earlier re-letting) would cause hardship and/or be harsh or unconscionable under section 78A(1)(g).
However, even where the Tribunal does reduce a fixed term tenancy, the Tribunal typically also awards the other party reasonable compensation for loss or damage that would result. In this case, the landlord said they had agreed to allow the tenant to move in after a month and had turned down other applicants. There must also have been expenses incurred in finding another tenant and potentially a loss of rent. Remedies
The Tribunal has power to grant relief when a contract is cancelled pursuant to section 43 of the Contract and Commercial Law Act 2017, in addition to an award of compensation. I have had regard to the matters set out in section 45.
I consider that the cost of the moving company ($240.00) is a loss incurred by the tenant in reliance on the landlord performing their side of the contract. I award the cost of the moving company as compensation.
I consider it is appropriate to take into account the likelihood that the landlord was not able to re-let the premises immediately and incurred loss of rent and cost, both in terms of administering the tenant’s contract, and in finding new tenants.
I also consider that the tenant should have tried to speak to the occupants of the main house on 27 July 2024, despite the early hour on a Saturday. They might have been able to move the truck and avoid all that followed. Further, the landlord remained ready to perform the contract.
I direct that the landlord can retain the sum of $420.00 already paid by the tenant for the first week’s rent, to defray their expenses. The bond, which is the tenant’s money and is held by the landlord, should be refunded to the tenant ($900.00).
Because the tenant has cancelled the contract, he is not liable to pay any further rent and the landlord (apart from compliance with this order) has no remaining obligations under the tenancy. Filing fee and name suppression
The tenant’s application has been largely successful. I award the filing fee.
Both parties are granted suppression, as requested. The landlord is granted suppression pursuant to section 95A(4) of the Act. I consider that the privacy interest of the parties outweighs any public interest in knowing their identities.

Tenancy Tribunal case 4963676 — Tenancy dispute

At a glance

Tenancy Tribunal case 4963676 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

If a tenant did not have this right how long would she have been required to wait?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

If a tenant did not have this right how long would she have been required to wait?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions