What was Tenancy Tribunal case 5004828 about?

The tribunal order states: The tenant is to remove the portable cabin from the premises by 4 pm Friday

How much money was awarded in case 5004828?

3. The Tenant Is To Pay The Landlord: $27.00 awarded to landlord

What type of tenancy dispute was case 5004828?

The primary dispute was Rent arrears. Related themes: 14-day notice, Exemplary damages.

Where can I read the official tribunal order for case 5004828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10996865-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5004828 about?

The tribunal order states: The tenant is to remove the portable cabin from the premises by 4 pm Friday

How much money was awarded in case 5004828?

3. The Tenant Is To Pay The Landlord: $27.00 awarded to landlord

What type of tenancy dispute was case 5004828?

The primary dispute was Rent arrears. Related themes: 14-day notice, Exemplary damages.

Where can I read the official tribunal order for case 5004828?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10996865-Tenancy_Tribunal_Order.pdf.

22 Whittaker Street, Shannon, Shannon 4821 Tenancy Tribunal Case 5004828 — Rent arrears

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 5004828. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
3. The tenant is to pay the landlord	$27.00		3. The tenant is to pay the landlord

The tenant is to remove the portable cabin from the premises by 4 pm Friday 1 November 2024.

If the tenant has not removed the portable cabin from the premises by that date and time, the tenancy will be terminated and the landlord will be entitled to possession of the premises at 22 Whittaker Street, Shannon 4821 from that date and time.

The tenant is to pay the landlord $27.00 immediately being reimbursement of the filing fee.

Reasons

The landlord attended the hearing.

The tenant did not attend the hearing.

The landlord has applied for termination of the tenancy on three grounds: a. The tenant has used or allowed the premises to be used for an unlawful purpose. See section 40(2)(b) Residential Tenancies Act 1986 (“RTA”); or b. The tenant has persistently been in breach of the tenancy agreement by being in arrears with her rent. See section 56(1) RTA; or c. The tenant has sub-let part of the premises contrary to clause 30 of the tenancy agreement and section 44 RTA. Standard of proof and exercise of jurisdiction

In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the landlord must establish with evidence that its claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.

While I may not have referred to all the evidence presented at the hearing, the landlord can be assured that it has all been considered.

Section 85 RTA provides useful guidance as to how the Tribunal should exercise its jurisdiction. It directs 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 of residential premises and to consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations or to legal forms and technicalities. The Tribunal has determined the landlord’s application with this requirement in mind. Unlawful use

The landlord believes that the tenant has used or permitted the premises to be used for an unlawful purpose.

The landlord provided photographic evidence of the presence of a bong in the premises. The landlord gave evidence that the bong “smelled of marijuana” and that there was cannabis leaf in an adjacent container.

Possessing or consuming illicit substances such as cannabis, without medical approval, is an unlawful act. It is also unlawful to knowingly permit any premises to be used for the purpose of the commission of an offence against the Misuse of Drugs Act 1975. See section 12(1) Misuse of Drugs Act 1975.

Section 41 RTA states the tenant is responsible for anything done by any person who is in the premises with the tenant’s permission if the act would have constituted a breach of the RTA or tenancy agreement.

Where there are serious allegations such as the commission of a criminal offence, the Tribunal needs to see a level of supporting evidence befitting the significance of the allegations.

The landlord has not provided any scientific evidence to support its claim that the bong had been used for smoking marijuana or the plant material was marijuana.

The Tribunal is not satisfied that the landlord has provided sufficiently compelling evidence to persuade it on the balance of probabilities that there has been marijuana smoked or possessed on the premises.

The landlord’s claim for termination on this basis is dismissed. Persistent rent arrears

The landlord provided evidence that the tenant has persistently and repeatedly fallen into arrears with payment of her rent and that 12 separate notifications have been issued to her regarding rent arrears from 22 March 2024 until 14 October 2024, a period of seven months.

The landlord’s rent records show that the tenant has missed payments nearly every month of the tenancy.

It is evident from the rent records that the tenant has remained in arrears for significant periods, such as from 9 February 2024 to 2 May 2024 and from 21 June 2024 and 22 August 2024.

The Tribunal may make an order terminating the tenancy if it is satisfied that the tenant has committed a breach of the tenancy agreement and/or RTA and the breach is of “such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.”

If the breach is capable of remedy the landlord must, before making the application, give the tenant a notice specifying the nature of the breach and requiring the other party to remedy it within a reasonable period, being not less than 14 days commencing with the day on which the notice was given. If the tenant then remedies the breach within the specified time, the Tribunal will not make an order terminating the tenancy.

Not all the notices provided in evidence by the landlord were 14-day breach notices. They were notices issued under section 55(1)(aa) RTA. 14-day notices were issued on 12 April 2024 and 15 July 2024. The arrears were not paid within 14 days and so the breaches were not remedied within 14 days.

In this case, the evidence before the Tribunal is that the tenant failed to remedy breaches capable of remedy (paying rent arrears) having received the required notice on two occasions, both some months ago.

The landlord confirmed that all arrears have been paid and the rent is up to date at the date of the hearing.

In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e. The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.

Applying those considerations to the facts of this case: a. The tenant has a poor history of making rent payments on time and remaining in arrears for weeks. b. The tenant’s failure to keep out of arrears has been persistent and the tenant has received numerous warnings. c. Email correspondence from the tenant to the landlord makes it clear that she is having difficulty making ends meet. There is a likelihood that the tenant will fall into arrears again. d. The breaches have been intentional. e. The landlord has managed the situation and kept in touch the tenant, keeping her up to date with the situation. f. While the tenant has persistently fallen into arrears, the amount of the arrears has not exceeded the bond at any time.

Termination of a tenancy is the Tribunal’s ultimate sanction. It understands the significant impact it has on tenants. Having weighed all the above factors and taking into account the fact that the tenant was not in arrears at the date of the hearing, by a very narrow margin the Tribunal is not satisfied that it would be inequitable to refuse to terminate the tenancy.

However, the tenant needs to be clear that a continuation of falling into arrears may well cause the landlord to apply again in the future for termination and the outcome may then be different. Subletting

Because of the financial difficulties the tenant has experienced, the tenant requested by email on 18 July 2024 the landlord’s consent to her installing a portable cabin on the premises and letting it out to supplement her income.

The landlord responded and declined to grant its consent.

The effect of clause 30 of the tenancy agreement and section 44 RTA is that subletting of the premises is prohibited and is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A RTA.

Despite the landlord’s lack of consent, the tenant proceeded to install a portable cabin and let it out to two people.

The definition of “premises” in section 2 RTA includes “any part of any premises”. By giving two people not named in the tenancy agreement exclusive rights to possession and occupation of part of the premises, the tenant has sublet by parting with possession of “any part of the premises” and so is in breach of the tenancy agreement and the RTA.

The landlord issued a 14-day notice on 23 August 2024 noting that the installation of the portable cabin was in breach of the tenancy agreement and the RTA and requiring its removal.

By email of 26 September 2024, the tenant made it clear that she would continue to disregard the breach and retain the cabin and rent it out to support her family. She states in that email: “I will suffer any consequences there are for making this call so that I and my daughters could survive.”

The tenant also queried the landlord’s ability to drive by the property to determine whether the cabin has been removed. She is to be in no doubt that the landlord is legally entitled to do so.

At the date of the hearing the landlord provided evidence that the tenant has not removed the portable cabin and that it is occupied by two people who pay the tenant rent.

The landlord’s application is for termination under section 56(1) RTA. It has established that the tenant is in breach of the tenancy agreement and the RTA. It is necessary to determine whether it would be inequitable to refuse to terminate the tenancy.

Applying the considerations listed in paragraph 23 of this order to the facts of this case: a. The breach is intentional and persistent, lasting some three months. It is an unlawful act under the RTA. b. The tenant has been repeatedly warned of the potential consequences of the breach and is aware that the landlord has taken the matter seriously by making its application to the Tribunal over a month ago. c. The tenant has made it clear that she intends to continue with the breach. d. The breach is serious. It poses health and safety issues for which the landlord may well be liable. The landlord advised that there is no external power outlet on the house and so power to the cabin is most likely by an extension cord. The landlord advised that the cabin’s presence places its insurance at risk. The presence of two extra persons at the premises exceeds the maximum number of tenants allowed under the tenancy agreement. This also is an unlawful act. e. Termination in the face of a deliberate, persistent and intentional breach of this significance is not a disproportionate remedy.

It is appropriate to give the tenant a final chance to remove the cabin and rectify the breach in the hope that in reading this order she will realise that the breach is serious and will result in her losing her home if she does not have the cabin removed by 4 pm Friday 1 November 2024.

This is a conditional termination order. See section 78(3) RTA. The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order is enforceable for 90 days from the first breach. See section 64(4)(b) RTA.

While the tenant feels compelled to breach the terms of her tenancy agreement and the RTA by the financial need to secure her home, those actions have come extremely close to causing her tenancy to be terminated. It is not an option for her to ignore her legal obligations, the landlord’s rights and responsibilities and this Order. If she persists in breaching her tenancy agreement by not removing the cabin, she will lose her home.

Because Professionals Unique Realty Ltd. As An Agent For Steve Sullivan has wholly succeeded with the claim I must reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 5004828. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
3. The tenant is to pay the landlord	$27.00		3. The tenant is to pay the landlord