What was Tenancy Tribunal case 5063713 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 5063713?

Break Lease Fee: $516.50 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,414.29 awarded to landlord

What type of tenancy dispute was case 5063713?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5063713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477253-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5063713 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 5063713?

Break Lease Fee: $516.50 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,414.29 awarded to landlord

What type of tenancy dispute was case 5063713?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5063713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11477253-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5063713 — Rent arrears

Claims and awards in Tenancy Tribunal application 5063713 — net $357.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (to 18/11/2024	$2,414.29	Rent arrears (to 18/11/2024
Break lease fee	$516.50	Break lease fee
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$357.79
Total payable by Tenant to Landlord	$357.79

Claims and awards in Tenancy Tribunal application 5063713 — net $357.79 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears (to 18/11/2024	$2,414.29	Rent arrears (to 18/11/2024
Break lease fee	$516.50	Break lease fee
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$357.79
Total payable by Tenant to Landlord	$357.79

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
[The tenant] must pay Barfoot & Thompson Limited As Agent For Junyong Qiu $357.79 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,600.00 ([Bond number suppressed]) to Barfoot & Thompson Limited As Agent For Junyong Qiu immediately.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant made a cross application for reduction of the fixed term tenancy, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy

Should the fixed term tenancy be ended early?

The landlord submitted the premise is new to the Barfoot & Thompson Ltd’s property management portfolio and until the tenant raised issues with it about safer concerns in relation to the boarding house next door, it confirmed it was unaware there was a boarding house next door or that this boarding house could be the source of potential safety risks for the tenant.
The landlord also submitted the premise had been rented out previously by the property owner and that it had made enquiries into the boarding house concerns raised by the tenant with the owner. Further, the owner had confirmed to the landlord that there had been no issues or concerns raised by prior tenants about the boarding house nor any safety or nuisance issues.
The tenant viewed the property on 28 September 2024. She submits that she was looking for a safe and secure property that had a high level of privacy and would be provide a safe living environment for her and her two children. She confirmed the property was advertised as a safe family home and she says she specifically disclosed to the property manager that she is a single mother that has been subjected to violence, has been diagnosed with PTSD, one of her children suffers from trauma, her other child is autistic and because of those factors she has a higher need for a safe, private and secure living environment.
Further, the tenant says that the property manager acknowledged she was looking for a safe family home and confirmed to her that this home was a safe family home in a safe Auckland suburb. Additionally, the tenant submits she did view the premise before signing up to a 12 month fixed term tenancy, but: a. She was distracted by a person outside the property that she knew who had a child with her that had a disability that was acting out. The tenant stopped to help out; b. She had her children in the car at the time of the viewing, and rushed through the viewing to get back to them; c. She only undertook minimal due diligence on the premise due to these distractions; and d. She did not notice the boarding house next door until she after she had signed up to the 12-month fixed term tenancy.
The tenant submitted an application for the property on 30 September 2024 and signed the fixed term tenancy agreement on 2 October 2024. The fixed term tenancy was to commence on 17 October 2024 and end on 17 October 2025.
The tenant picked up the keys from the landlord on 16 October 2024 and went to the property at night and heard loud music from the neighbouring property, saw mattresses outside that property, had a man that was staring at her when she was in the driveway and when she was inside the property. She had been unaware to this point that the neighbouring house was a 14-bedroom boarding house that fulfils the role of a half way house for persons that made her fear for her and he children’s safety.
The tenant immediately sent an email to the landlord asking to break the fixed term tenancy as she felt so unsafe she had made the decision not to move into the house the next morning. She submitted that she had her belongings moved into storage, as she could not stay at her prior tenancy, and she and her children had to move in with her mother, who lives in a one-bedroom apartment, until she could find a more suitable place for er and her children to live. She also went to the landlord’s offices the next day to explain her situation further and return the keys.
The landlord showed it sent the tenant a return email on 17 October 2024 that outlined the break lease fees, process and obligations and then readvertised the premise the same day. A new tenant was found that moved into the premise on 19 November 2024.
The tenant claims the landlord has a legal and ethical obligation to disclose to all potential tenants that the premise is not a safe family home, as it is located next to a halfway house for up to 14 people who may cause safety, privacy and/or nuisance risks. Further, as a single mother with two children who have special needs, she says she had disclosed her special needs to the property manager at the viewing, he had assured her the premise was a safe family home and had he undertaken due diligence he would have quickly discovered the premise was next to a large halfway house that is known in the community for being a nuisance and safety risk. She submits that she should be held liable for the costs the property owner has incurred because she chose not to move into the property and would not have signed up for had she been informed of the halfway house on the neighbouring property.
The landlord confirmed there had been a lot of interest in the property when the tenant had viewed it and the property owner had chosen the tenant as she had good references, but in doing so he had lost the other potential tenants that had applied at the same time as the tenant. They had found other places to live. As such, the landlord had to readvertise the property for rent. It did so on 17 October 2024 and was able to get a new tenant to move in within a month.
The landlord claims the property owner should not be required to absorb the cost of the lost rent and the reletting related fees it has incurred when the tenant refused to move into a house that the next tenant has had no issues with. It maintains the premise is a safe family home and the tenant never gave the property a chance. It also confirms the tenant had an opportunity to fully assess the premise against her own specific needs before signing up to the fixed term lease.
The tenant says the owner should have reasonably known about the halfway house next door and should have warned her as the owner of that halfway house has other such boarding houses and that all of his boarding house have safety and nuisance issues. Further, she confirmed that she had become aware of a Facebook page where members raised numerous safety, privacy and nuisance concerns about the halfway house next to the premise she rented and that if she could find this social media-based information, the landlord should have also found it and made her aware of it before she signed the fixed term lease. The law
Parties enter into a fixed term tenancy for security. For tenants this is security of tenure; they can be sure they have a home for at least the agreed term. For landlords it is security of income; they can rely on a set amount of income from their investment.
If a tenant wishes to default on that contract, and the landlord accepts the repudiation, then the tenancy ends on the terms agreed. In such a situation of surrender the landlord does not have to agree and can stipulate terms provided they are reasonable. Such reasonable terms can be to ensure the aggrieved party (here the landlord) be placed in the same position as they would have been in, but for the breach of the tenancy agreement.
If the parties cannot agree to end the tenancy, it is open to the tenants to apply to the Tribunal to reduce the term pursuant to section 66(1) RTA.
The Tribunal 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.
Section 66 sets a high threshold for reducing fixed term tenancies. The jurisdiction in this section is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain.
The term “unforeseen” is a legal term defined by reference to the reverse (“foreseeability”) in cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts, there is a body of case law which has established that: a. Foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; b. an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; c. The term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “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”.
As an alternative to ending the tenancy, pursuant to s66 of the RTA, the Tribunal may also consider ending a tenancy such as this one under the doctrine of equitable estoppel.
Promissory estoppel provides a common law equitable remedy when a person has relied upon another person’s promise to their own detriment. When someone makes a claim on the basis of promissory estoppel, they need to prove five elements in order to establish a legal interest. Specifically, there must be: a. A legal relationship between the parties, most commonly established through a contractual agreement; b. A promise or assurance that was reasonably believable in the circumstances; c. Reliance on the promise or assurance that was justifiable in the circumstances; d. Detriment because of the person relying on the promise or assurance; and e. It would be unconscionable for the person to be allowed to get away with reneging on their promise. Analysis & findings
The parties here could not come to an agreement to end the tenancy on 17 October 2024, when the tenant returned the keys.
The landlord took all reasonably practicable steps to find tenants to take over the lease as soon as practicable and incurred reasonable expenses of $516.50in doing so.
The tenant never moved into the premise on 17 October 2024 and has incurred moving and storage costs and costs associated with driving her children longer distances to school from her mother apartment until she could find suitable rental accommodation.
The tenant has sought relief from the Tribunal in the form of an application pursuant to s66 for her tenancy to be ended on 17 October 2024, as she only had the key for less than 24 hours.
I then turn to an application of s66 of the RTA to this situation. Having considered the facts, I find: a. There has not been an unforeseen change in the tenant’s’ circumstances. b. The tenant by her own admission had been distracted when she went to view the property and had not undertaken thorough due diligence on the property before signing up to a fixed term tenancy. This was a calculated risk she took which unfortunately has not progressed in her favour, as she and her children have some specific safety, privacy and public nuisance- based needs that are over and above what the average family may require to feel safe in a premise. c. What has changed for the tenant is that when she went to the property the night before she was about to move in, she noticed the boarding house and was concerned about loud music that was playing at a time she would normally have her children in bed sleeping. The boarding house had been present when she viewed the property and she was free to search the tenancy website for claims at the addresses next to the premise she was considering renting, she could have driven past the house of an evening before signing up to the tenancy to observe what the neighbour was like at that time of the day, she could have asked the property manager about the neighbours and done other things such as seek out social media based information on the community she was considering living in.
Section 66 of the RTA is clear that it must the applicants’ circumstances that have changed in an unforeseeable way, not external factors such as the tenant not having done sufficient due diligence on the premise and then suffering a form of buyer’s remorse after signing up to the fixed term tenancy that she latterly discovered does not meet her and her family’s special safety, privacy and quietness requirements. It was reasonably foreseeable that if the tenant, with specific needs in a rental property, did not take undertake reasonable due diligence on the premise before signing up to a fixed term tenancy to assure herself that the premise met her and her family’s needs, that she could end up not wanting to continue with the tenancy.
Section 66 of the RTA is clear in requiring the Tribunal to establish an unforeseen change in circumstances before the respective hardships are weighed.
I empathise with both parties’ circumstances, but particularly the tenant’s, however, as an unforeseen change in the tenant’s circumstances has not been established, I have no jurisdiction to end the tenancy, and this claim must be dismissed.
Finally, I note that I cannot accept the argument the landlord has an ethical and legal obligation to undertake the level of due diligence the tenant has asserted was required to be able to be assured the property would meet all this tenant’s specific special requirements. That would be an unreasonable burden on a landlord. It is for a tenant to make sufficient enquiries about a premise, before signing up to a fixed term tenancy, to satisfy himself/herself/ them that the property is one that meets his/her/their needs, especially in relation to enquiring about neighbours and any past issues with neighbours.
The landlord was under no obligation to agree to end the fixed term early and the landlord found a new tenant expeditiously.
In addition, the evidence produced by the parties falls short of that required for the tenant to prove on the balance of probabilities: a. The landlord gave the tenant any more of an assurance than that the property was in a good area and in its view was a safe family home for an average family, or that it gave the tenant any promise or assurance that the premise would meet her very specific and special requirements. Only the tenant could assess whether the premise met her, and her children’s very specific needs based on her knowledge of the past trauma and disabilities she had to accommodate in a living environment. The landlord has confirmed that the current and prior tenants have been families that have been happy living in this home. The landlord disclosed what it knew about the property and was not under any legal or ethical obligation to do more than it did; b. The tenant’s reliance on landlord’s alleged assurance that this was a family home in a safe area of Auckland was a promise that the premise would meet her very specific needs that this reliance was justifiable in all the circumstances. On the contrary, the evidence suggests the tenant did not undertake enough due diligence to assure herself the property met her specific requirements and it was not reasonable to rely solely on the landlord advertising the home as a safe family home to form the unreasonable belief the neighbours would not make noise at the time her children would be asleep or that boarding house as a neighbour made the premise unsafe for her and her children to live in; c. The tenant has suffered detriment because of her reasonable reliance on the landlord’s alleged assurance. The detriment she has suffered is not from the landlord’s failure to meet its legal obligations to her; and d. It would be unconscionable for the landlord to be allowed to get away with reneging on its promise/assurance. The tenant should have undertaken her own due diligence and not relied on the landlord knowing who the neighbours were and if they were likely to make the premise an untenable place to live for her and her children. The landlord has proven this has been and continues to be a safe family home for the families that do and have lived there and that do not have the specific needs this family had.
I dismiss the tenant’s claim to reduce her fixed term tenancy for all the reasons set out above.

How much is owed for rent?

The tenancy ended on 18 November 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy.

Is the tenant responsible for break lease fees?

The tenant can be ordered to pay reasonable compensation for any loss or damage that has resulted from the reduction in the term of the fixed term tenancy.
The tenant is legally considered to have abandoned the fixed term tenancy before the end of the fixed term and the landlord has proven it incurred reasonable costs of $516.50 for break lease administration fees, advertising fees and credit check fees because of the fixed term lease being ended 12 months early. The charging of this cost is provided for in the tenancy agreement.
I have granted the landlord compensation it has claimed for these costs it directly incurred because of the reduction of the fixed term of the tenancy. Reimbursement of the filing fee
Because Barfoot & Thompson Limited As Agent For Junyong Qiu has wholly succeeded with the claim I must reimburse the filing fee. Name Suppression
The tenant applies for non-publication of her name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has not substantially succeeded in these proceedings, but I do not consider publication is in the public interest or justified because of the tenants’ conduct or any other circumstances of the case and consider the tenant could be unfairly penalised when looking for new tenancy’s if her name was published.
Non-publication of the tenant’s name is ordered.

Tenancy Tribunal case 5063713 — Rent arrears

At a glance

Tenancy Tribunal case 5063713 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Should the fixed term tenancy be ended early?

How much is owed for rent?

Is the tenant responsible for break lease fees?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the fixed term tenancy be ended early?

How much is owed for rent?

Is the tenant responsible for break lease fees?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions