What was the outcome of Tenancy Tribunal case 5001009?

The tribunal order states: The application of Eunan Francis Mulrine, and Grainne Maire Kerr to be

How much money was awarded in case 5001009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5001009?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5001009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11209318-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5001009?

The tribunal order states: The application of Eunan Francis Mulrine, and Grainne Maire Kerr to be

How much money was awarded in case 5001009?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5001009?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 5001009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11209318-Tenancy_Tribunal_Order.pdf.

Unit/Flat 5, 105 Rongotai Road, Kilbrinie, Wellington 6022 Tenancy Tribunal Case 5001009 — 14-day notice

Order

The application of Eunan Francis Mulrine, and Grainne Maire Kerr to be released from the fixed-term tenancy at Unit/Flat 5, 105 Rongotai Road, Kilbrinie, Wellington 6022 is dismissed.

Reasons

The tenants attended the hearing. The landlord did not attend. Non-attendance by landlord
The landlord, Mr Kasoulides, requested an adjournment on 6 December 2024 on grounds that he only received 6 working days’ notice of the hearing without any information as to the nature of the claim. He requested a copy of the application and supporting documents and an adjournment. The request for an adjournment was declined as I considered he had ample time to prepare for the hearing. I also note that the parties had previously engaged in a mediation in which the tenants’ claim was discussed at length. Therefore, I considered he was fully informed about the nature of the claim.
On 11 December 2024 at 4.44pm, the landlord sent an email to the Tribunal advising that he could not attend the hearing as he has COVID and he sent through a photograph of a positive test. The Tribunal sent an email today, 12 December 2024 at 10.16am, advising that he could attend the hearing by telephone and he would be contacted on the telephone number provided in the application and in his email for the hearing. The Tribunal made three attempts to call the landlord for the hearing today. The Tribunal left a voice message during the first call asking the landlord to pick up the call. Two further attempts were made shortly after 2pm and again at approximately 2.30pm which both diverted to voice mail. The landlord was on notice that the hearing would proceed and did not advise that he was unable to attend by telephone. Therefore, the hearing proceeded in his absence. The claim
The tenants, Mr Mulrine, and Ms Kerr have applied for reduction of their fixed term tenancy. They are renting premises along with Ms Brady and one other person. There are three rooms and Mr Mulrine and Ms Kerr share one of the rooms as a couple. Mr Mulrine and Ms Kerr advised that they have been tenants since on or about 2018 pursuant to a fixed term tenancy agreement. Over the years they have signed further agreements to renew, extend and/vary the terms of the fixed term tenancy. Various co-tenants have come and gone. The current term of the tenancy is fixed until 16 January 2025. While the tenants have apportioned between themselves a share of the total rent payable to the landlord, I am satisfied that the current four tenants are jointly and severally liable for their obligations under the tenancy agreement. Mr Mulrine and Ms Kerr are paying $410 for their room. Background facts
On 8 August 2024, Mr Mulrine and Ms Kerr advised the landlord by text that they had an opportunity to rent their own place and wished to move out of the premises and find replacement tenants for their room. Their co-tenants wanted to remain. They had previously taken responsibility for finding replacement tenants several times during the tenancy. Clause 24 of the tenancy agreement also provides for replacement tenants as follows: “Requests for early exits from fixed term tenancies will incur costs that are paid by the tenant/s. Other conditions will apply which will be emailed to you should the need arise. Upon acceptance by all parties involved the charges will be as follows: To make a change of one tenant (or couple in the same room) and continue the tenancy in the rental there is a fee of $350........The tenant’s will be liable for all rent due until the day before the new tenants take over.”
On 8 August 2024, the tenants received the following text message from the landlord: “Have you spoken to your flatmates, you will be looking for a couple who would need to be approved by the remaining tenants and that may take some time for which you will be responsible for your share of the rent you pay now til approved tenants are found and there is an exit fee as per tenancy?”
The tenants responded noting that they would check with their current flatmates and start looking for a replacement couple.
On 6 September 2024 the tenants messaged the landlord to advise that they had found a suitable couple who had met the housemates and everyone agreed to them becoming replacement tenants. They were keen to start the tenancy in a few days. The tenants asked the landlord when the change could be done. He requested that the proposed tenants and remaining tenants call him. He also sought confirmation that the proposed tenants had read and understood the tenancy agreement. Those steps were completed.
In a telephone call on 9 September 2024, the landlord advised Ms Kerr that he wished to restructure the flat so that it would only be for 3 single tenants. He no longer wanted a couple to replace Ms Kerr and Mr Mulrine. He also proposed that any replacement tenant pay $290 for their room (for which they are currently paying $410) and that they pay the shortfall of $120 until the fixed term expires on 16 January 2025.
The tenants did not agree to the landlord’s proposal and subsequent negotiations with the landlord failed. Replacement tenants have not therefore been found.
The tenants argue that the landlord’s proposal and conditions for consenting to a change of tenants was unreasonable and would cause both them and the remaining tenants further costs in terms of rent and sharing of utility costs.
Mr Mulrine and Ms Kerr have therefore applied to the Tribunal asking the Tribunal to release them from the tenancy. They have, however, already vacated the premises and commenced another tenancy. While the remaining tenants consent to this application in principle, they do not agree to be responsible for the total rent payable for the premises. Therefore, in practical terms they do not agree that Ms Kerr and Mr Mulrine should be released from the tenancy and all obligations including payment of rent. Where there is a fixed term tenancy for which the tenants are jointly and severally liable for their obligations, the Tribunal has no power to consider an application releasing the tenants and terminating the tenancy early unless it ends the tenancy for all. 1
Even if all tenants were asking to be released from the fixed term tenancy, I find no grounds for doing so. 1 Derbyshire v Mark and Maggies Property Company Limited [2013] NZTT 1477 confirms that one tenant in a joint tenancy is not able to give notice or apply to end a fixed term tenancy unless all joint tenants agree. Grounds for termination
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 (RTA).
Where the breach is capable of remedy, the party not in breach must first serve a notice on the other party requiring them to remedy the breach within at least 14 days and establish that they have failed to do so (“14-day breach notice”).
Ms Kerr and Mr Mulrine may have an argument that the landlord has breached clause 24 of the tenancy agreement which allows them to find replacement tenants including a couple for their room. The landlord may have breached his obligation by attempting to change the terms and insisting on a single tenant paying lesser rent and requiring the outgoing tenants to make up the difference.
However, the tenants have not served a 14-day breach notice on the landlord in accordance with the process in s56. Therefore, the Tribunal could not consider termination under this provision.
The Tribunal may also 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) RTA.
However, I am satisfied on the tenants’ evidence that they made a choice to vacate the premises and commence another tenancy before the landlord approved of any replacement tenants. Accordingly, there has not been an unforeseen change in the tenant's circumstances to justify an application under s66 RTA.
In summary, no grounds have been established to enable the Tribunal to terminate the tenancy, even had all four tenants applied for termination.
The tenants may have grounds for a claim in compensation due to a breach of clause 24 of the tenancy agreement but such a claim is not before the Tribunal. Therefore, I cannot consider it. It is open to the tenants to being a further application.

While the tenants have asked for termination, they also reference in their application that they believe the landlord has unreasonably withheld consent to an assignment of the tenancy under s43B RTA.
A tenant may, at any time during the tenancy, assign the tenancy with the prior written consent of the landlord; and in accordance with any reasonable conditions attached to that consent by the landlord. See s43B(1) RTA. Under 43B(6) the landlord must not withhold consent unreasonably; or attach any unreasonable conditions to the consent.
As I explained to the tenants at the hearing, the provisions in s43B RTA only apply in respect of fixed term tenancies entered after 11 February 2021. Tenancies commencing before that date which are subsequently, renewed, varied or extended are not subject to those particular provisions. Mr Mulrine and Ms Kerr’s tenancy started before 11 February 2021. As to whether any subsequent agreements were new agreements or whether they were renewals, extensions or variations would need to be established.
If the tenancy is subject to s43B and if the landlord is in breach of these provisions, it may be grounds for compensation. However, the tenants have not sought compensation in their current application. Therefore, I cannot consider it. It is open to them to file a further application.
A breach of s43B(6) might also be grounds to terminate the tenancy under s56 RTA. However, it would be a breach capable of remedy and the tenants would have to have served a 14-day breach notice. They have not done so. In any event, as explained above, I cannot terminate the tenancy and obligations of only two out of four tenants in a fixed term tenancy.
In relation to the tenant’s current application requesting a release from the fixed term tenancy, I must dismiss it.

Tenancy Tribunal case 5001009 — 14-day notice at Unit/Flat 5, 105 Rongotai Road, Kilbrinie, Wellington 6022

At a glance

Tenancy Tribunal case 5001009 — 14-day notice at Unit/Flat 5, 105 Rongotai Road, Kilbrinie, Wellington 6022

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

At a glance

At a glance

Claims & awards

Order

Reasons

Has the landlord withheld their consent unreasonably under s43B RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord withheld their consent unreasonably under s43B RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions