What was Tenancy Tribunal case 4987788 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4987788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4987788?

The primary dispute was Rent arrears. Related themes: Cleanliness, Harassment.

Where can I read the official tribunal order for case 4987788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10850865-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4987788 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4987788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4987788?

The primary dispute was Rent arrears. Related themes: Cleanliness, Harassment.

Where can I read the official tribunal order for case 4987788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10850865-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4987788 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties names’ and identifying details.
The term of the fixed-term tenancy of [The tenant/s] at [Tenancy address suppressed] is reduced and now ends at 6.00pm on Friday 20 September 2024. Possession is granted to the landlord on that day and time.
The landlord’s cross application is adjourned and should be scheduled for a 90- minute video hearing before the same adjudicator.
If either party intends to produce any additional documents at the next hearing, they must send copies to the Tribunal at least 7 days date prior to the hearing date to Remote.Tenancy@justice.govt.nz.
The parties will be advised of the next hearing time and date by separate notification.

Reasons

ATTENDANCES

Both parties attended the hearing.
The applicants [Tenant 1] and [Tenant 2] attended by phone.
The third tenant, [Tenant 3] attended by Teams call.
[The landlord’s representative] and [The property manager] attended for the landlord by Teams. [The landlord’s representative] appeared for the landlord company [The landlord] and [The property manager] has been managing the tenancy as property manager.

APPLICATION

The tenant has applied for reduction of the fixed-term tenancy due to end on 31 January 2025.

RELEVANT LAW

The relevant law that applies is found in the Residential Tenancies Act 1986 (RTA). With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, 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 likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.
Section 85 of the RTA requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants and to 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 it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined this application with these provisions in mind.
From the outset of the hearing, I outlined the relevant legal basis on which the Tribunal can reduce a fixed term tenancy so that the parties understood on what basis I would be determining the matter. I heard evidence from all present at the hearing and I confirm I have reviewed the transcript of the evidence from the parties and have outlined the relevant points below.

TENANTS POSITION

[Tenant 1] and [Tenant 2] commenced the application to end the fixed term. At the hearing [Tenant 3] confirmed that he consents to an order being made for reduction of the fixed term. None of the tenants are residing in the property.
The parties entered into a fixed term residential tenancy agreement (the agreement) to commence on 21 June 2024.
All three tenants had lived in the tenancy without a tenancy agreement prior to signing the agreement. When the tenants moved into the property it was on the basis that they would be added as tenants to the existing tenancy which ended on 23 June 2024. They signed relevant transfer documentation with the previous tenants however these were not finalised and as a result the parties were residing in the property without a residential tenancy agreement or written flatmate agreement.
[Tenant 1] gave the following evidence: a. He moved into the premises in April 2024. b. Issues arose when the landlord advised the tenants that the rent was in arrears. This was a shock as they had been paying rent to [Tenant 3]. c. Tensions increased. On or about 27 August 2024 the tenants had a meeting about the rent arrears which became heated. [Tenant 1] left and when he returned [Tenant 3] was walking around the home with a machete. He left immediately. d. He was aware of the complaint filed by [Tenant 2] to the Police and confirmed that the Police advised by letter of 3 September 2023 that they will not be investigating the matter or prosecuting [Tenant 3]. e. [Tenant 1] spoke of an earlier incident where [Tenant 3] had the machete as he was worried about someone chasing him. The Police were called but I do not have any further information or the specific date of that incident.
[Tenant 2] gave the following evidence: a. He moved into the premises in February 2024. He believed he had completed all the relevant forms to transfer the tenancy from a previous tenant to his name. b. Within the same week that a previous tenant moved out, another tenant moved in (but shortly after moved out as she had brought a cat into the tenancy, in breach of the agreement) and the agreement was signed. He confirmed that issues arose following this. c. On 29 August he submitted a non-urgent police report noting [Tenant 1] has been threatened and that an argument between [Tenant 1] and [Tenant 3] had made [Tenant 1] and himself feel uncomfortable and unsafe. He referred to [Tenant 3] yelling, swearing, engaging in intimidating and threatening behaviour and that [Tenant 3] was seen carrying a machete in the home that he has kept beside his bed in the past. d. He gave evidence that he did not think the property manager considered the stress and well-being on them when managing the situation.
[Tenant 3], as noted above, agreed the fixed term tenancy should end but disputes the reasons for it. He gave the following evidence: a. He moved into the premises before the other tenants. b. He accepted that he did not pay his share of the rent for a period of time however he rectified this, and he disputed the allegation of aggression. c. [Tenant 3] would like a solution that will benefit all parties and he has been working towards replacing the tenants with subtenants.
[Tenant 3] spoke about accepting his obligations under the agreement however my view is that he took this position to distract from the serious safety issues that arose. I found [Tenant 3] to be evasive in answering questions around the incident’s with the machete.

LANDLORDS POSITION

[The landlord’s representative] gave the following evidence: a. The previous property manager was tardy at paperwork and never inspected the property. As a result, the landlord was unaware of the change in tenants during the previous fixed term tenancy. b. She outlined some of the issues and misunderstandings that led to the three tenants being in occupation when it was intended that four tenants would reside in the property. One of the issues that arose is that the previous tenant had arranged an unsuitable replacement for himself. The landlord did allow for reduced rent payments for a few weeks to allow the tenants to find a suitable replacement tenant to ensure they could meet the rent obligations, c. She is concerned from a business perspective about having to obtain new tenants. She is not opposed to the tenancy ending but would like the tenants to find replacement tenants so that the business keeps ticking.
[The property manager] gave brief evidence to outline some of the communication with the tenants. It seems to me [The property manager] went to great lengths to resolve the conflict between the tenants and ensure the tenancy could be sustained. FAMILY VIOLENCE ACT 2018 CLAIM
[Tenant 1] and [Tenant 2] have applied to end the tenancy on the basis they have been subjected to family violence by [Tenant 3].
When a tenant alleges they have been the victim of family violence section 53 B of the RTA sets out the basis the tenant may withdraw from a tenancy. It states: 56B Withdrawal from tenancy following family violence (1) A tenant under a fixed-term or periodic tenancy may withdraw from the tenancy by giving at least 2 days’ notice to the landlord if— (a) the notice is accompanied by qualifying evidence that the tenant has been a victim of family violence while a tenant of the premises; and (b)the notice is in the approved form and includes the prescribed information. (2)If there are no other tenants under the tenancy at the time of the withdrawal, the tenancy terminates. (3)If there are other tenants (remaining tenants) under the tenancy at the time of the withdrawal,— (a)the tenant withdrawing from the tenancy (the withdrawing tenant) ceases to be responsible to the landlord for obligations under the tenancy agreement and this Act, except in respect of any liability for anything done or omitted to be done before the withdrawal; and (b)the tenancy continues in relation to the remaining tenants only; and (c)the withdrawing tenant must give each remaining tenant notice of the withdrawal no later than the close of the day that is 2 days after the date of the withdrawal; and (d)the amount of rent for which the remaining tenants are liable is reduced as set out in subsection (5) (unless subsection (6) applies).
Section 56 (b) (4) provides that failure to comply with subsection (3)(c) does not affect the validity of the withdrawal. Sections 5 - 7 provide for subsequent rent payments by the remaining tenant/s.
Section (8) defines family violence as having the meaning given to it by section 9 of the Family Violence Act 2018 and defines qualifying evidence as meaning a declaration in the approved form made by a person who is prescribed, or evidence, in the approved form, of a prescribed type. The Residential Tenancies (Termination for Physical Assault by Tenant and Withdrawal Following Family Violence) Regulations 2022 sets out the types of qualifying evidence required to accompany the approved form.
In this case the tenant has not provided notice of withdrawing from the tenancy in the approved form. The approved form is available on the Tenancy Services website. The tenant cannot rely on the section 56B provisions of the RTA as they have failed to comply with the requirements. I therefore will consider the application to end the fixed term under section 66 of the RTA.
However, I do note the Tribunal will not look behind a properly served approved form for withdrawal from a tenancy based on family violence with evidence.

REDUCING A FIXED TERM

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. There is a high threshold that needs to be met before the Tribunal will reduce the term.
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. See section 66(1) of the RTA.
Section 66(2) confirms that if the Tribunal reduces the term of the tenancy, that the Tribunal can order the tenant pay compensation to the landlord. That provision holds: 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.
In order to make an order reducing the term of the tenancy, the Tribunal needs to find that unforeseen circumstances arose for all co-tenants (see Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).

THIS CASE

There has been an unforeseen change in the tenant's circumstances.
I do not consider the tenants can rely on the fact that they did not have a sufficient number of tenants to meet the ongoing rental obligations. The issues around how the landlord managed the property are also not compelling grounds to reduce the fixed term tenancy.
However, I consider [Tenant 3]’s possession of the machete which he appeared to have on him for defensive purposes, combined with his threatening demeanour, led to a change in circumstances for all tenants. I consider [Tenant 3] has responded to the other tenant’s dissatisfaction with him not paying his share of the rent with intimidation, specifically by carrying a machete on the property. I consider this would have left both tenants seriously concerned about their safety.
The tenants would suffer severe hardship if the term of the tenancy were not reduced. The tenants would be both fearful for their safety and responsible for meeting the rent payments until a new tenancy commences. [Tenant 1] has moved into a home with ongoing rental commitments to his new landlord.
The landlord would suffer hardship if the term is reduced. The landlord will need to advertise and find further appropriate tenants, however there is no evidence that this will be particularly difficult for the landlord to do. In fact, the landlord indicated that the property is normally rented for a higher weekly rent so it seems that the landlord may benefit from the fixed term being reduced.
I find that the tenant’s hardship would be greater than the landlord’s hardship.

DECISION

I therefore have made an order reducing the fixed term tenancy.
The tenancy is to terminate at 6 pm on Friday 20 September 2024.
The tenants remain jointly and severally liable for rent to that date. I have allowed further time to ensure the tenants remove all the possessions and ensure the property is left in a reasonably clean and tidy state.

FURTHER GROUNDS TO END THE FIXED TERM TENANCY

Had I not made an order reducing the fixed term tenancy pursuant to section 66 of the RTA I would have made an order amending the tenancy agreement pursuant to Section 77 (a) and (f).
Section 77 provides the Tribunal may, in respect of any claim within its jurisdiction, make 1 or more of the following orders: (a) an order in the nature of a declaration, whether as to the status for the purposes of this Act of any premises or of any agreement or purported agreement, or as to the rights or obligations of any party, or otherwise:... ...(f) where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, an order varying the agreement, or setting it aside (either wholly or in part):
The tenancy agreement records the tenancy commencing on 21 June 2024. The document history confirms: a. the agreement was created on 22 June 2024. b. [Tenant 3] received and signed the agreement on 22 June 2024. c. [Tenant 2] received the agreement on 22 June 2022 and signed it on 25 June 2024. d. [Tenant 1] received the agreement on 25 June 2024 and signed it on 2 July 2024. e. The landlord signed the agreement on 2 July 2024.
In this case the landlord failed to provide the fixed term tenancy agreement before the commencement of the tenancy. This is in breach of section 13 of the RTA which provides the landlord must, before the tenancy commences, sign the tenancy agreement; and provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it). The tenants were occupying the premises when the landlord had them sign the fixed term agreement. In my view this was harsh and unconscionable.

CASE MANAGEMENT DIRECTIONS

Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) of the RTA.
I will consider any claim for compensation for the reduction of the fixed term at the next hearing.
The landlord has filed a cross application seeking compensation for any damage and cleaning and orders in relation to disposal of goods.
These matters should be scheduled for hearing after 4 October 2024 to allow the landlord to inspect the property.
The parties will be notified in writing by Tenancy Services of the date and time of the next hearing in due course.

SUPPRESSION

Having regards to the interests of the parties and the public interest I have made an order suppressing the parties’ names and identifying details. See section 95A of the RTA.

Tenancy Tribunal case 4987788 — Rent arrears

At a glance

Tenancy Tribunal case 4987788 — Rent arrears

At a glance

Claims & awards

Order

Reasons

ATTENDANCES

APPLICATION

RELEVANT LAW

TENANTS POSITION

LANDLORDS POSITION

REDUCING A FIXED TERM

THIS CASE

DECISION

FURTHER GROUNDS TO END THE FIXED TERM TENANCY

CASE MANAGEMENT DIRECTIONS

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

ATTENDANCES

APPLICATION

RELEVANT LAW

TENANTS POSITION

LANDLORDS POSITION

REDUCING A FIXED TERM

THIS CASE

DECISION

FURTHER GROUNDS TO END THE FIXED TERM TENANCY

CASE MANAGEMENT DIRECTIONS

SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions