What was Tenancy Tribunal case 5019573 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5019573?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019573?

The dispute type was not classified.

Where can I read the official tribunal order for case 5019573?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11058130-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5019573 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5019573?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5019573?

The dispute type was not classified.

Where can I read the official tribunal order for case 5019573?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11058130-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5019573 — Tenancy dispute

Order

The application is dismissed.

Reasons

Ms Monaghan and Ms Hall appeared. The landlord appeared.
Ms Monaghan and Ms Hall claim that the landlord has imposed unreasonable conditions on an assignment of the tenancy. They seek an order requiring the landlord to accept the assignment on reasonable conditions, or alternatively an order that the landlord accept surrender of their individual tenancy rights under the agreement. They also seek compensation.
On 01 February 2024, Ms Monaghan, Ms Hall, [Tenant 1], [Tenant 2], and [Tenant 3] entered into a joint fixed term tenancy with the landlord to end on 01 February 2025. [Redacted]. All are university students completing their first year of study.
On 10 September 2024, Ms Monaghan and Ms Hall made a written request to assign their share of the fixed term tenancy to two other students. The assignment was made on the basis that Ms Monaghan and Ms Hall intended returning to their respective hometowns at the end of the academic year. The students to whom they proposed assigning their shares intended staying in [City] and working through until the resumption of studies in 2025. The matter was raised with the landlord during an inspection on 11 September 2022, at which the landlord stated they needed to meet the prospective tenants (P1, P2). The contact details for P1 and P2 were not contained in the written request.
On 11 September 2024 Ms Hall provided the landlord with the contact details for P1. The contact details were not provided for P2, who had been invited to contact the landlord. [Tenant 1] and [Tenant 2] sent an email to the landlord advising that they consented to the assignment of Ms Monaghan’s and Ms Hall’s share of the tenancy. There is no evidence that [Tenant 3] consented.
On 16 September 2024, the landlord advised that they would contact the tenants once they had heard from P1 and P2.
On 27 September 2024, the landlord sent the following email to Ms Hall and Ms Monaghan: “Response In the first instance I require written agreement from all the remaining tenants on the tenancy agreement that they are happy for [ Ms Hall and Ms Monaghan] to assign their tenancy spots to P1 and P2. If all remaining tenants agree to the assignment, I will grant my consent on the following conditions – •At least two of the remaining tenants on the existing tenancy agreement will be residing in the house during the entire period from 01 November 2024 to 31 January 2025 and not [ be] heading home. • The bond is increased from $3.000 to $3,800.”
Ms Hall and Ms Monaghan argue that the conditions are unreasonable.
Ms Monaghan and Ms Hall state that neither P1 nor P2 were contacted by the landlord before setting the conditions.
Ms Hall and Ms Monaghan believe they can seek assignment of their individual rights of occupation under the agreement, and do not require the consent of all tenants.
Section 2(1) of the Act defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy,’ and ‘tenancy agreement’ are defined as: i. residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. ii. tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy. iii. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
The tenant relies on the provisions contained section 43B of the Residential Tenancies Act 1986 (The “Act”), which states: 43B Assignment of tenancy by tenant (1) A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord. (2) Subsection (1) does not apply in the circumstances described in section 43A (2). (3) A tenant commits an unlawful act if the tenant assigns the tenancy— (a) without the prior written consent of the landlord; or (b) if the tenancy is a tenancy described in section 53B(1)(a), in contravention of a provision described in section 43A (2). (4) If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4) commits an unlawful act. (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms. (8) A landlord’s consent must be taken to have been withheld unreasonably if the withholding of the consent is an unlawful act under section 12 (discrimination to be unlawful act).
The landlord believes that all of the tenants must consent, stating that they believed [Tenant 3] had not been asked whether they consented or not.
The landlord states while they had been provided with contact details for P1, they had not been provided with the contact details for P2. However, the landlord accepts they did not attempt to contact either before formulating the conditions.
Ms Monaghan and Ms Hall accept that only one of the written requests contained contact details for the prospective tenant, and that they had believed that the landlord and the other prospective tenant would initiate contact.
The landlord was concerned that P1 and P2 would be moving straight out of halls of residence, and questioned whether they could appropriately reside at the property without the support and guidance of at least two of the existing tenants.
The landlord states that the bond was currently three weeks rent, less than that permitted under the Act, and that the proposed increase would simply bring it to four weeks rent. Conclusion
The issue in this case is whether a tenant to a joint tenancy, with or without the consent of the other tenants, can seek to assign their shared right of occupation under the agreement. If so, are the conditions attached by the landlord unreasonable?
A tenancy agreement may be periodic or for a fixed term.
Multiple individuals with a shared right of occupation under a tenancy agreement can be collectively referred to as “the tenant” or “a tenant.”
In this case there is one tenancy agreement, with five individuals who collectively form the “tenant.” Each of the five individuals is jointly and severally liable with the other.
Section 43B extends the right of assignment to “a tenant”, allowing them to assign “the tenancy”. This provision therefore gives the right to seek assignment of the whole tenancy, and not just a part of it.
The wording of subsection (7) of section 43B confirms that it applies to the tenancy as a whole, providing that instead of consenting to an assignment request, the landlord may offer to accept the surrender of the entire tenancy.
Individuals with a shared right of occupation under a tenancy agreement cannot, whether the tenancy is periodic or fixed term, assign their individual right of occupation under section 43B of the Act.
In summary, Ms Monaghan and Ms Hall are unable to seek an assignment of their rights of occupation under section 43B of the Act.
Although parties to a tenancy agreement may bilaterally agree to vary its terms, and there is no obligation on a landlord to agree to such variations, they cannot “assign” their individual rights of occupation under section 43B. Therefore, the application is dismissed. Name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
Neither party seeks name suppression. Both have asked the Tribunal to consider suppressing the address of the property. I accept there is no public interest in the address of the property. I order suppression of the names of those who have not been party to these proceedings, and the address of the property.

Reasons

Ms Monaghan and Ms Hall appeared. The landlord appeared.

Ms Monaghan and Ms Hall claim that the landlord has imposed unreasonable conditions on an assignment of the tenancy. They seek an order requiring the landlord to accept the assignment on reasonable conditions, or alternatively an order that the landlord accept surrender of their individual tenancy rights under the agreement. They also seek compensation.

On 01 February 2024, Ms Monaghan, Ms Hall, [Tenant 1], [Tenant 2], and [Tenant 3] entered into a joint fixed term tenancy with the landlord to end on 01 February 2025. [Redacted]. All are university students completing their first year of study.

On 10 September 2024, Ms Monaghan and Ms Hall made a written request to assign their share of the fixed term tenancy to two other students. The assignment was made on the basis that Ms Monaghan and Ms Hall intended returning to their respective hometowns at the end of the academic year. The students to whom they proposed assigning their shares intended staying in [City] and working through until the resumption of studies in 2025. The matter was raised with the landlord during an inspection on 11 September 2022, at which the landlord stated they needed to meet the prospective tenants (P1, P2). The contact details for P1 and P2 were not contained in the written request.

On 11 September 2024 Ms Hall provided the landlord with the contact details for P1. The contact details were not provided for P2, who had been invited to contact the landlord. [Tenant 1] and [Tenant 2] sent an email to the landlord advising that they consented to the assignment of Ms Monaghan’s and Ms Hall’s share of the tenancy. There is no evidence that [Tenant 3] consented.

On 16 September 2024, the landlord advised that they would contact the tenants once they had heard from P1 and P2.

On 27 September 2024, the landlord sent the following email to Ms Hall and Ms Monaghan: “Response In the first instance I require written agreement from all the remaining tenants on the tenancy agreement that they are happy for [ Ms Hall and Ms Monaghan] to assign their tenancy spots to P1 and P2. If all remaining tenants agree to the assignment, I will grant my consent on the following conditions – •At least two of the remaining tenants on the existing tenancy agreement will be residing in the house during the entire period from 01 November 2024 to 31 January 2025 and not [ be] heading home. • The bond is increased from $3.000 to $3,800.”

Ms Hall and Ms Monaghan argue that the conditions are unreasonable.

Ms Monaghan and Ms Hall state that neither P1 nor P2 were contacted by the landlord before setting the conditions.

Ms Hall and Ms Monaghan believe they can seek assignment of their individual rights of occupation under the agreement, and do not require the consent of all tenants.

Section 2(1) of the Act defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. The terms ’residential premises,’ ‘tenancy,’ and ‘tenancy agreement’ are defined as: i. residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful. ii. tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy. iii. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.

The tenant relies on the provisions contained section 43B of the Residential Tenancies Act 1986 (The “Act”), which states: 43B Assignment of tenancy by tenant (1) A tenant may, at any time during the tenancy, assign the tenancy— (a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord. (2) Subsection (1) does not apply in the circumstances described in section 43A (2). (3) A tenant commits an unlawful act if the tenant assigns the tenancy— (a) without the prior written consent of the landlord; or (b) if the tenancy is a tenancy described in section 53B(1)(a), in contravention of a provision described in section 43A (2). (4) If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies, and includes contact details for, the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time. (5) A landlord who, without reasonable excuse, fails to comply with subsection (4) commits an unlawful act. (6) The landlord must not— (a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent. (7) A landlord’s consent must not be taken to have been withheld unreasonably if, instead of consenting to an assignment, the landlord offers to accept a surrender of the tenancy on reasonable terms. (8) A landlord’s consent must be taken to have been withheld unreasonably if the withholding of the consent is an unlawful act under section 12 (discrimination to be unlawful act).

The landlord believes that all of the tenants must consent, stating that they believed [Tenant 3] had not been asked whether they consented or not.

The landlord states while they had been provided with contact details for P1, they had not been provided with the contact details for P2. However, the landlord accepts they did not attempt to contact either before formulating the conditions.

Ms Monaghan and Ms Hall accept that only one of the written requests contained contact details for the prospective tenant, and that they had believed that the landlord and the other prospective tenant would initiate contact.

The landlord was concerned that P1 and P2 would be moving straight out of halls of residence, and questioned whether they could appropriately reside at the property without the support and guidance of at least two of the existing tenants.

The landlord states that the bond was currently three weeks rent, less than that permitted under the Act, and that the proposed increase would simply bring it to four weeks rent. Conclusion

The issue in this case is whether a tenant to a joint tenancy, with or without the consent of the other tenants, can seek to assign their shared right of occupation under the agreement. If so, are the conditions attached by the landlord unreasonable?

A tenancy agreement may be periodic or for a fixed term.

Multiple individuals with a shared right of occupation under a tenancy agreement can be collectively referred to as “the tenant” or “a tenant.”

In this case there is one tenancy agreement, with five individuals who collectively form the “tenant.” Each of the five individuals is jointly and severally liable with the other.

Section 43B extends the right of assignment to “a tenant”, allowing them to assign “the tenancy”. This provision therefore gives the right to seek assignment of the whole tenancy, and not just a part of it.

The wording of subsection (7) of section 43B confirms that it applies to the tenancy as a whole, providing that instead of consenting to an assignment request, the landlord may offer to accept the surrender of the entire tenancy.

Individuals with a shared right of occupation under a tenancy agreement cannot, whether the tenancy is periodic or fixed term, assign their individual right of occupation under section 43B of the Act.

In summary, Ms Monaghan and Ms Hall are unable to seek an assignment of their rights of occupation under section 43B of the Act.

Although parties to a tenancy agreement may bilaterally agree to vary its terms, and there is no obligation on a landlord to agree to such variations, they cannot “assign” their individual rights of occupation under section 43B. Therefore, the application is dismissed. Name suppression.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

Neither party seeks name suppression. Both have asked the Tribunal to consider suppressing the address of the property. I accept there is no public interest in the address of the property. I order suppression of the names of those who have not been party to these proceedings, and the address of the property.

Tenancy Tribunal case 5019573 — Tenancy dispute

At a glance

Claims & awards

Tenancy Tribunal case 5019573 — Tenancy dispute

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions