What was the outcome of Tenancy Tribunal case 4972653?

The tribunal order states: David Stewart Henderson owes Darroch Limited as Agent for Waka Kotahi

How much money was awarded in case 4972653?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $12,100.00 awarded to landlord; Water Rates: $284.03 awarded to landlord

What type of tenancy dispute was case 4972653?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4972653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11126251-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4972653?

The tribunal order states: David Stewart Henderson owes Darroch Limited as Agent for Waka Kotahi

How much money was awarded in case 4972653?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $12,100.00 awarded to landlord; Water Rates: $284.03 awarded to landlord

What type of tenancy dispute was case 4972653?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4972653?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11126251-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 5 Princes Street, Northcote Point, Auckland Tenancy Tribunal Case 4972653 — Rent arrears

Claims and awards in Tenancy Tribunal application 4972653 — net $12,411.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears at Monday 2 December 2024	$12,100.00	Rent arrears at Monday 2 December 2024
Water rates to Watercare invoice due 21.11.24	$284.03	Water rates to Watercare invoice due 21.11.24
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$12,411.03
Total payable by Tenant to Landlord	$12,411.03

Claims and awards in Tenancy Tribunal application 4972653 — net $12,411.03 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears at Monday 2 December 2024	$12,100.00	Rent arrears at Monday 2 December 2024
Water rates to Watercare invoice due 21.11.24	$284.03	Water rates to Watercare invoice due 21.11.24
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$12,411.03
Total payable by Tenant to Landlord	$12,411.03

Order

David Stewart Henderson owes Darroch Limited as Agent for Waka Kotahi NZTA $12,411.03 (less any payments made by the tenant since 23 August 2024) (“the debt”) calculated as shown in the following table:
The landlord’s application for termination of the tenancy is dismissed. Leave is granted to the landlord to make a further application to terminate the tenancy for non-payment of this rent, if the debt is not paid within 21 days of the date of this Order.
The tenant must pay rent of $700.00 per week in advance starting on Tuesday, 3 December 2024 and continuing each Tuesday thereafter during the tenancy (unless the rent amount is lawfully changed).
The tenant’s applications are dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
The tenant challenges the arrears claimed and has filed an application seeking abatement of the rent and/ or a reduced market rent assessment. Background
The tenant is the former owner of this property, which was subject to compulsory acquisition under the Public Works Act, for construction of the Northern Pathway - West Haven to Akoranga.
It is a term of the sale and purchase agreement that the property will be offered back to the tenant if not required for that project. The sale and purchase was settled on 4 May 2023
Alongside the sale and purchase transaction, the parties entered into a residential tenancy agreement under which the tenant has the right to continue occupying the premises for payment of rent. It is a term of the tenancy agreement that the landlord will not terminate the tenancy, unless breached by the tenant, until the landlord requires occupation of the property, to proceed with the works for which the property was acquired. Jurisdiction
Because of that unusual feature of the parties’ relationship, I raised with them whether there was any issue with the Tribunal’s jurisdiction to determine the dispute, in particular having regard to s.5(1)(o) which provides that the RTA shall not apply, “....where the tenant is the purchaser of the premises under an agreement for sale and purchase with the landlord as vendor, not being an agreement that is revocable at will by the vendor.”
Both parties’ position is that the RTA is not excluded by s.5(1)(o) in these circumstances. Even if that exclusion were applicable, the agreement clearly states (cl. 9) that “This tenancy is subject to the Residential Tenancies Act 1986.” Applying s.8 RTA, “Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy, either without modification or with such modifications as they may so agree”. The parties have opted to have the RTA apply to their landlord/ tenant relationship.
I find that the Tribunal has jurisdiction to determine the dispute. Rent
There is no dispute that the parties are parties to a residential tenancy agreement, generally on the terms of the document provided.
That document has not however been signed by both parties. The landlord drafted and sent the agreement to the tenant with a commencement date of 28 April 2023, at a rent payable of $900.00 per week. On 14 June 2023 the tenant signed and returned the agreement to the landlord with the commencement date changed to 1 August 2023. The landlord says there was no prior discussion about that change. The landlord says that it did not agree to the change and so has not signed the agreement.
The rent statement shows that the tenant began paying rent of $900.00 per week from 1 August 2023.
On 25 June 2024 the tenant notified the landlord that he was having trouble finding a flatmate to share the rent cost, due to a Restricted Access Notice (“yellow sticker”) having been placed on the premises, preventing use of part of the deck.
The tenant proposed that the rent be reduced to $400.00 per week. The landlord agreed to reduce the rent to $700.00 effective 25 June 2024. The tenant claims that the rent reduction should take effect from the start of the tenancy.
The tenant also claims that the rent should be further reduced because of his continuing difficulty in finding a flatmate. Analysis
The starting point is that although there is no tenancy agreement signed by both parties, there is nevertheless an agreement between them. Section 13C RTA provides that, “Notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation or renewal of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing.”
There is no dispute about the terms of the parties’ agreement, as contained in the agreement drafted by the landlord and signed by the tenant, except for the start date, changed by the tenant.
The tenant had agreed to pay rent of $900.00 per week. That is corroborated by his initial rent payments of multiples of that amount and by a letter from his solicitor to the landlord’s solicitors on 26 April 2023 confirming. “My client will accept a rental of $900.00 per week for a residential tenancy of the premises until remedial work to be carried out by our client and the council is complete and the restrictions removed. Thereafter the rental will be the current market rental for the whole property. A bond is acceptable.”
I find it proved that the landlord has been owner of the property since 4 May 2023. The tenant has remained occupying the premises throughout.
One might assume that the tenant would be expected to pay rent from the point at which the landlord became owner of the premises. The agreement sent by the landlord to the tenant was drafted on that basis.
There is however no corroborating evidence of that start date being agreed and I find that the landlord can only prove an entitlement to rent from 1 August 2023.
The yellow sticker was placed on 20 April 2023. It identifies “Landslip on either side of property on cliffside” as an observed hazard and restricts access to, “bottom part of front deck”.
The date of the yellow sticker is consistent with the landlord’s position that the existence and effect of it were known when the agreement was entered into. It predates the letter from the tenant’s solicitor on 26 April 2023. It seems likely to be referenced in the solicitor’s letter quoted above as part of the “restrictions”, which, when removed, would lead to a market rent becoming payable, although the tenant says those were references only to damage to the premises from Cyclone Gabrielle, not to the subsidence that led to the yellow sticker being issued.

Should the rent be abated?

Section 59 RTA provides that: “Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,—the rent shall abate accordingly.....”
The effect of the yellow sticker is that part of the premises, the “bottom part of the front deck” is unable to be used. Section 59 would require abatement of the rent, to recognise the tenant’s inability to use that part of the premises.
The issue here however, is that the available evidence suggests that an abatement of the rent to account for that restriction on the use of the premises, is included in the initially agreed rent of $900.00.
Importantly, the yellow sticker had been in place for close to 2 months before the tenant signed the agreement, agreeing to pay $900.00 per week for the premises and another 5 weeks before he began to do so.
In considering whether any further abatement is reasonable, it is appropriate to have regard to the effective 100% rent abatement the tenant has received from occupying a property owned by the landlord from 4 May 2023 to 31 July 2023, without paying any rent.
I do not find it proved that a further abatement of the rent is warranted for the tenant’s inability to use the part of the front deck impacted by the yellow sticker.

Should the rent be reduced to a lower market rent?

In his application the tenant has referenced s.24A. That provision applies to the parties’ agreement, because they have agreed that, “......during a specified period or until the occurrence of a specified event, the tenant is entitled to pay a lower rent.”
The effect of that provision is that once the time elapse or the event that ends the reduced rent period arrives, the rent returning to its normal rate does not constitute a rent increase. That provision does not provide jurisdiction for the Tribunal to order a rent reduction.
Under s.25, “.... the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent.”
For the purposes of s.25, market rent is , “.....the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents.......for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
The tenant’s position is that because the yellow sticker limits use of the front deck and also gives rise to concerns about the safety of the premises generally, it has not been possible for him to find flatmates to share the rent cost, which in turn should be reflected in a lower market rent for the premises.
The tenant has provided some evidence of the efforts he has made to find a flatmate. He has also provided in evidence, a statement from Barfoot & Thompson that, “As a company, we have made the decision to not find tenants for any properties that have been yellow stickered.”
That evidence does not prove that potential flatmates are not prepared to live in the premises but does provide some corroboration of the tenant’s position that the yellow sticker is a barrier to finding someone to share the rent.
The landlord has provided a rent appraisal, also from Barfoot & Thompson dated 16 March 2023, giving a rental estimate of $1,175 - $1,275 per week for the premises. That appraisal pre-dates the yellow sticker.
The tenant has provided no evidence of what a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy.
I find it likely more likely than not that the yellow sticker has had an impact on the tenant’s ability to find a flatmate to share the rent cost. That impact might well reduce, “.....the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy..”
Any Order for market rent under s.25 RTA cannot have effect before the date of the application for the Order (s.25(4)). The date of the tenant’s application was 29 August 2024. By that date, the rent had been reduced from $900.00 to $700.00 by agreement. The evidence does not provide a basis for finding that a market rent for the premises, even yellow stickered, is substantially less than $700.00.
That claim is declined. Water Rates
Under the agreement and by s.39(4) RTA, the tenant is responsible for metred water usage at the premises.
The Watercare invoices provided by the landlord show that the landlord pays the fixed charges by annual lump sum, so the charges shown on the Watercare invoices are consumption based charges for which the tenant is responsible.
Accordingly, the cumulative balance shown as owing on the latest invoice represents the overdue amount payable by the tenant.

Should a Termination Order be made?

The effect of the findings in this Order, is that the rent is considerably more than 21 days in arrears.
The rent summary provided by the landlord at the hearing shows arrears owed at 11 November 2024 of $10,000.00, with the last rent payment by the tenant recorded as $4,000.00 paid on 23 August 2024. The Order assumes no further payments to the end of the rent week ending 2 December 2024. Further rent payments may have been made since those shown on the rent summary.
Had the applications made by the tenant been successful, it would have impacted on the quantum of arrears owed.
The prejudice to the landlord from allowing the tenancy to continue is mitigated to a degree by the likelihood of further transactions between the parties that will allow reconciliation and recovery of rent debt if the tenant does not comply with the Order.
For those reasons and given the other unusual characteristics of this tenancy, the appropriate course is to clarify the tenant’s obligations and provide him an opportunity to meet them, before considering termination of the tenancy.
Because the landlord has succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4972653 — Rent arrears at Unit/Flat 1, 5 Princes Street, Northcote Point, Auckland

At a glance

Tenancy Tribunal case 4972653 — Rent arrears at Unit/Flat 1, 5 Princes Street, Northcote Point, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Should the rent be abated?

Should the rent be reduced to a lower market rent?

Should a Termination Order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the rent be abated?

Should the rent be reduced to a lower market rent?

Should a Termination Order be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions