What was Tenancy Tribunal case 5021688 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 5021688?

Filing Fee: $27.00 awarded to tenant; Reimbursement Of Rent From 10 Decemb…: $1,220.01 awarded to tenant

What type of tenancy dispute was case 5021688?

The dispute type was not classified.

Where can I read the official tribunal order for case 5021688?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11321421-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5021688 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 5021688?

Filing Fee: $27.00 awarded to tenant; Reimbursement Of Rent From 10 Decemb…: $1,220.01 awarded to tenant

What type of tenancy dispute was case 5021688?

The dispute type was not classified.

Where can I read the official tribunal order for case 5021688?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11321421-Tribunal_Order_Redacted.pdf.

Unit/Flat Unit 6L, 18 Wakefield Street, Auckland Central, Tenancy Tribunal Case 5021688 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5021688 — net $1,247.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of rent from 10 December 2024 to 13 January 2025	$1,220.01	Reimbursement of rent from 10 December 2024 to 13 January 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,247.01
Total payable by Landlord to Tenant	$1,247.01

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names.
The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat Unit 6L, 18 Wakefield Street, Auckland Central, Auckland 1010, Embassy Apartments is reduced and now ends at 11.59pm on Monday 9 December 2024.
Mog Limited must pay [The tenant/s] $1,247.01 immediately, calculated as shown in table below. It represents the rent to be reimbursed to the tenants after the term is reduced as in order 2. above less a. compensation of $2,200.00 awarded to the landlord, and b. reimbursement of the filing fee.

Reasons

The claim was considered during two hearings. The first hearing was adjourned as I was not satisfied [Tenant 1] had received notice of the claim and the hearing details. I am now satisfied that [Tenant 1] has received the required notice prior to today’s hearing.
[Tenant 2] (tenant) and Mrs Gage (for the landlord) attended the hearing both hearings. [Tenant 1] (tenant) did not attend either hearing. After receiving notice [Tenant 1] forwarded evidence which was considered at the second hearing, along with the evidence presented by the other parties.
The tenants have applied for reduction of the fixed term tenancy due to end on 12 February 2024.
The tenants first asked the landlord about ending the fixed term early in March 2024. The property manager advised on 26 April 2024 that the owner would agree to look for replacement tenants as long as the tenants paid the cost of advertising ($840). The tenants could not afford to pay the costs associated with finding replacement tenants and chose to advertise and look for replacement tenants themselves. This was unsuccessful. The tenants then agreed on 30 October to pay the advertising costs from their bond once new tenants were found, and the property manager started to advertise for replacement tenants on 1 November.
[Tenant 1] moved out of the tenancy in March 2024, and returned for a short period in May before completely moving out of the premises. [Tenant 2] continued to live in the premises until early September when she also moved out. The property manager has found new tenants who will move in soon after this fixed term ends.
The usual legal position with a fixed term tenancy contract is that the term of the contract is strictly applied and can only be broken by agreement between the parties or by an order from the Tribunal. Where the fixed term tenancy has a number of tenants, they are all jointly and severally liable for the tenancy, which means that they must be of the same mind in wishing to terminate the tenancy early.
Here I am satisfied that both tenants want to the tenancy to end early. They initially went down the path of trying to find replacement tenants with the agreement of the landlord. However as replacement tenants were not found they decided to make an application to the Tribunal to reduce the term of the tenancy.
There is a high threshold to be meet before the tribunal will reduce the term. The applicant, being the tenants in this case, needs to establish that: a. there has been an unforeseen change in their circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship exceeds the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).
"Unforeseen" is not defined in the RTA. The term “unforeseen” has a dictionary definition of “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk” 1 .
I find there has been an unforeseen change in the tenants’ circumstances as not long after the tenancy commenced [Tenant 1] suffered severe neck pain and required surgery. The surgery resulted in [Tenant 1] having limited movement and a long recovery period. The surgery occurred in May and at the time of the second hearing she is still unable to work.
I am satisfied that [Tenant 1] was not able to remain living at the premises as she needed daily support, which [Tenant 2] was not able to provide. As a result [Tenant 2] moved to live with her family in [City 2] and was unable to return to live at the premises. [Tenant 1] has continued to pay rent with assistance from her family.
[Tenant 2] has had to pay all other outgoings including food, power and internet in addition to her share of the rent. [Tenant 2] works on a casual basis and I am persuaded has financially struggled. She could not afford to continue to live in [City 1] and had to move back to live with family, also in [City 2], so that she was only paying rent.
While the tenants have continued to pay their rent I am satisfied this has caused them financial hardship.
Overall I am persuaded that the hardship to the tenants would be severe if the tenancy term is not reduced.
In addition, after [Tenant 1] moved out [Tenant 2] said her car was broken into when it was parked in the secure car park for the apartments where the tenancy premises is located. Document/s showing her apartment details were taken. [Tenant 1] said she felt violated and that it increased her concerns that it was unsafe living in [City 1] alone given the early morning starts involved with her work.
I am not convinced that the break-in to [Tenant 2]’s car was an unforeseen change in circumstances. However, I accept that it added to the hardship [Tenant 2] suffered which flowed from [Tenant 1] not being able to live in [City 1] after her surgery. 1 Bond v Tang, Invercargill TT, 09/00583/IN, 25 August 2009
The property manager said the owner is currently a student at a tertiary provider in the South Island. She says he relies on the rental income from the apartment landlord to live on and without it also suffers financial hardship.
The weighing of relative hardship is a question of fact to be assessed objectively in each case. In this case on consideration of the evidence I find the tenant’s hardship if the term was not reduced is greater than the landlord’s hardship if the term is reduced.
Accordingly I find the tenants have met the threshold required under section 66 of the RTA and that the term is the tenancy should be reduced. When should the tenancy end and is the landlord entitled to compensation for the reduced term?
When the Tribunal orders a reduction in the term of a fixed term tenancy it needs to determine the date the tenancy will end.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss (section 66(2), RTA).
In considering when the tenancy should end and whether the landlord should be awarded compensation I have considered all evidence presented, in particular that: a) The tenants agreed on 30 October to pay the $840.00 from their bond and the property manager started advertising the property on 1 November. Had the property manager advertised and undertaken their usual process in finding new tenants from 26 April, being the date the landlord agreed to break the term of the tenancy, the tenancy may have ended earlier. b) The tenants’ application to the Tribunal was filed on 1 October, some five months after the landlord agreed the tenancy could end as soon as new tenants were found. c) Had the tenants’ filed their application earlier instead of asking the landlord to agree to an early end to the tenancy it is likely that the Tribunal would have awarded some compensation to the landlord. d) The tenants’ claim was originally set down for hearing on 4 December 2024 but was adjourned as it became apparent that [Tenant 1] had not been served with notice of the claim and or notice of the hearing. e) The property manager has been unable to find new tenants until recently. The property says there is a surplus of apartments available for rent comparted to the tenants looking for accommodation. The apartment was advertised for the same rent as the tenants were paying, rather than a reduced rent which may have resulted in replacement tenants being found earlier. f)The landlord is relying on the rental income to live on and therefore suffers hardship if the premises is not rented.
Considering the above I order that the fixed term tenancy is reduced to 9 December 2024 which is the end of the rent week in the week when the claim was first heard and could have been considered had [Tenant 1] been served with the claim and hearing details.
I find it is reasonable that the landlord is awarded compensation due to the reduction in the term of the tenancy. I award compensation to the landlord of $2,200.00 which includes the advertising costs of $840.00 the tenants agreed to pay.
Rent is currently paid to Monday 13 January 2025 with a $20 credit. As at 9 December 2024 the tenants were $319.99 in arrears. Rent paid from 10 December 2024 to 13 January 2025 amounts to $3,740.00 2 . Less the arrears of $319.99 as at 9 December 2024, the tenants are entitled to reimbursement of $3,420.00 less the compensation awarded. This means the landlord is to reimburse $1,220.01 to the tenants.
The tenants have no obligation to pay any further rent and any rent paid after 14 January 2025 is to be reimbursed to the tenants in addition to the sum calculated above.
As the $840 advertising costs is included in the rent to be reimbursed to the tenants the landlord is not entitled to payment of this sum from the bond. Other orders
The tenants have been successful in their claim and are entitled to reimbursement of the filing fee.
The tenants have not made an application for suppression, but I am using my discretion to allow suppression of the tenants’ names. This is because there has been no breach by the tenants which means any public interest is in the law rather than their names. See section 95A RTA.

Claims and awards in Tenancy Tribunal application 5021688 — net $1,247.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Reimbursement of rent from 10 December 2024 to 13 January 2025	$1,220.01	Reimbursement of rent from 10 December 2024 to 13 January 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,247.01
Total payable by Landlord to Tenant	$1,247.01

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names.
The term of the fixed-term tenancy of [The tenant/s] at Unit/Flat Unit 6L, 18 Wakefield Street, Auckland Central, Auckland 1010, Embassy Apartments is reduced and now ends at 11.59pm on Monday 9 December 2024.
Mog Limited must pay [The tenant/s] $1,247.01 immediately, calculated as shown in table below. It represents the rent to be reimbursed to the tenants after the term is reduced as in order 2. above less a. compensation of $2,200.00 awarded to the landlord, and b. reimbursement of the filing fee.

Reasons

The claim was considered during two hearings. The first hearing was adjourned as I was not satisfied [Tenant 1] had received notice of the claim and the hearing details. I am now satisfied that [Tenant 1] has received the required notice prior to today’s hearing.
[Tenant 2] (tenant) and Mrs Gage (for the landlord) attended the hearing both hearings. [Tenant 1] (tenant) did not attend either hearing. After receiving notice [Tenant 1] forwarded evidence which was considered at the second hearing, along with the evidence presented by the other parties.
The tenants have applied for reduction of the fixed term tenancy due to end on 12 February 2024.
The tenants first asked the landlord about ending the fixed term early in March 2024. The property manager advised on 26 April 2024 that the owner would agree to look for replacement tenants as long as the tenants paid the cost of advertising ($840). The tenants could not afford to pay the costs associated with finding replacement tenants and chose to advertise and look for replacement tenants themselves. This was unsuccessful. The tenants then agreed on 30 October to pay the advertising costs from their bond once new tenants were found, and the property manager started to advertise for replacement tenants on 1 November.
[Tenant 1] moved out of the tenancy in March 2024, and returned for a short period in May before completely moving out of the premises. [Tenant 2] continued to live in the premises until early September when she also moved out. The property manager has found new tenants who will move in soon after this fixed term ends.
The usual legal position with a fixed term tenancy contract is that the term of the contract is strictly applied and can only be broken by agreement between the parties or by an order from the Tribunal. Where the fixed term tenancy has a number of tenants, they are all jointly and severally liable for the tenancy, which means that they must be of the same mind in wishing to terminate the tenancy early.
Here I am satisfied that both tenants want to the tenancy to end early. They initially went down the path of trying to find replacement tenants with the agreement of the landlord. However as replacement tenants were not found they decided to make an application to the Tribunal to reduce the term of the tenancy.
There is a high threshold to be meet before the tribunal will reduce the term. The applicant, being the tenants in this case, needs to establish that: a. there has been an unforeseen change in their circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship exceeds the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).
"Unforeseen" is not defined in the RTA. The term “unforeseen” has a dictionary definition of “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk” 1 .
I find there has been an unforeseen change in the tenants’ circumstances as not long after the tenancy commenced [Tenant 1] suffered severe neck pain and required surgery. The surgery resulted in [Tenant 1] having limited movement and a long recovery period. The surgery occurred in May and at the time of the second hearing she is still unable to work.
I am satisfied that [Tenant 1] was not able to remain living at the premises as she needed daily support, which [Tenant 2] was not able to provide. As a result [Tenant 2] moved to live with her family in [City 2] and was unable to return to live at the premises. [Tenant 1] has continued to pay rent with assistance from her family.
[Tenant 2] has had to pay all other outgoings including food, power and internet in addition to her share of the rent. [Tenant 2] works on a casual basis and I am persuaded has financially struggled. She could not afford to continue to live in [City 1] and had to move back to live with family, also in [City 2], so that she was only paying rent.
While the tenants have continued to pay their rent I am satisfied this has caused them financial hardship.
Overall I am persuaded that the hardship to the tenants would be severe if the tenancy term is not reduced.
In addition, after [Tenant 1] moved out [Tenant 2] said her car was broken into when it was parked in the secure car park for the apartments where the tenancy premises is located. Document/s showing her apartment details were taken. [Tenant 1] said she felt violated and that it increased her concerns that it was unsafe living in [City 1] alone given the early morning starts involved with her work.
I am not convinced that the break-in to [Tenant 2]’s car was an unforeseen change in circumstances. However, I accept that it added to the hardship [Tenant 2] suffered which flowed from [Tenant 1] not being able to live in [City 1] after her surgery. 1 Bond v Tang, Invercargill TT, 09/00583/IN, 25 August 2009
The property manager said the owner is currently a student at a tertiary provider in the South Island. She says he relies on the rental income from the apartment landlord to live on and without it also suffers financial hardship.
The weighing of relative hardship is a question of fact to be assessed objectively in each case. In this case on consideration of the evidence I find the tenant’s hardship if the term was not reduced is greater than the landlord’s hardship if the term is reduced.
Accordingly I find the tenants have met the threshold required under section 66 of the RTA and that the term is the tenancy should be reduced. When should the tenancy end and is the landlord entitled to compensation for the reduced term?
When the Tribunal orders a reduction in the term of a fixed term tenancy it needs to determine the date the tenancy will end.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss (section 66(2), RTA).
In considering when the tenancy should end and whether the landlord should be awarded compensation I have considered all evidence presented, in particular that: a) The tenants agreed on 30 October to pay the $840.00 from their bond and the property manager started advertising the property on 1 November. Had the property manager advertised and undertaken their usual process in finding new tenants from 26 April, being the date the landlord agreed to break the term of the tenancy, the tenancy may have ended earlier. b) The tenants’ application to the Tribunal was filed on 1 October, some five months after the landlord agreed the tenancy could end as soon as new tenants were found. c) Had the tenants’ filed their application earlier instead of asking the landlord to agree to an early end to the tenancy it is likely that the Tribunal would have awarded some compensation to the landlord. d) The tenants’ claim was originally set down for hearing on 4 December 2024 but was adjourned as it became apparent that [Tenant 1] had not been served with notice of the claim and or notice of the hearing. e) The property manager has been unable to find new tenants until recently. The property says there is a surplus of apartments available for rent comparted to the tenants looking for accommodation. The apartment was advertised for the same rent as the tenants were paying, rather than a reduced rent which may have resulted in replacement tenants being found earlier. f)The landlord is relying on the rental income to live on and therefore suffers hardship if the premises is not rented.
Considering the above I order that the fixed term tenancy is reduced to 9 December 2024 which is the end of the rent week in the week when the claim was first heard and could have been considered had [Tenant 1] been served with the claim and hearing details.
I find it is reasonable that the landlord is awarded compensation due to the reduction in the term of the tenancy. I award compensation to the landlord of $2,200.00 which includes the advertising costs of $840.00 the tenants agreed to pay.
Rent is currently paid to Monday 13 January 2025 with a $20 credit. As at 9 December 2024 the tenants were $319.99 in arrears. Rent paid from 10 December 2024 to 13 January 2025 amounts to $3,740.00 2 . Less the arrears of $319.99 as at 9 December 2024, the tenants are entitled to reimbursement of $3,420.00 less the compensation awarded. This means the landlord is to reimburse $1,220.01 to the tenants.
The tenants have no obligation to pay any further rent and any rent paid after 14 January 2025 is to be reimbursed to the tenants in addition to the sum calculated above.
As the $840 advertising costs is included in the rent to be reimbursed to the tenants the landlord is not entitled to payment of this sum from the bond. Other orders
The tenants have been successful in their claim and are entitled to reimbursement of the filing fee.
The tenants have not made an application for suppression, but I am using my discretion to allow suppression of the tenants’ names. This is because there has been no breach by the tenants which means any public interest is in the law rather than their names. See section 95A RTA.

Tenancy Tribunal case 5021688 — Tenancy dispute at Unit/Flat Unit 6L, 18 Wakefield Street, Auckland Central,

At a glance

Award balance

Tenancy Tribunal case 5021688 — Tenancy dispute at Unit/Flat Unit 6L, 18 Wakefield Street, Auckland Central,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions