What was the outcome of Tenancy Tribunal case 5071669?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5071669?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5071669?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5071669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11163464-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5071669?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5071669?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5071669?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5071669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11163464-Tenancy_Tribunal_Order.pdf.

2A Churton Crescent, Taita, Lower Hutt 5011 Tenancy Tribunal Case 5071669 — Cleanliness

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The tenants, Ms Polonceaux and Mr Simpson, have a fixed term tenancy of the premises commencing on 19 February 2024 and ending on 18 February 2025.
Ms Polonceaux and Mr Simpson separated, and Mr Simpson moved out of the premises. On 27 September Ms Poloceaux advised Ms Ghate that she want to end the tenancy early. She found a new tenancy on 1 November and advised the landlord on 4 November that she had vacated and she had left the key in a lock box at the premises.
Ms Polonceaux seeks an order for reduction of the term of the tenancy claiming that Ms Ghate unreasonably refused consent to assign the tenancy to her friend. She also claims that Ms Ghate took back possession of the premises (and therefore the tenancy ended) when she completed an inspection of the premises on 6 November without first getting her consent or giving the appropriate notice.

There is a clause in the tenancy agreement prohibiting subletting or parting with possession of the premises. The clause also provides that an assignment is permitted with the landlord’s written consent, and consent must not be unreasonably withheld. This is consistent with section 43B of the Residential Tenancies Act 1986 (the Act).
On 18 October Ms Polonceaux emailed Ms Ghate stating that her friend, Natasha, “is looking for a place to stay for a few weeks” and “I was wondering if it would be ok for Natasha to stay at the house and look after it while Quinovic advertise it for rent to a long-term tenant. Natasha is aware the house is on the market and is able to move out at short notice back to her parent’s house. I would be keen to stay on the lease and pay the rent, as well as keep full responsibility of the house, while Natasha stays here.” Ms Polonceaux then states that she understands subletting is not allowed in her tenancy agreement and appears to suggest a formal assignment might be an option (although it is not clear from the wording of the email).
Ms Ghate replied that same day stating that she would not agree to a sublease and “you can check with your friend if she wants to take over the full new lease at the same [rent] per week. If not, I am afraid a short-term rental is not a solution”.
I am satisfied that this was a request by Ms Polonceaux for a short-term sublease, not a request to assign the tenancy for the remainder of its term. However, even if it was a request for an assignment to Natasha, I consider that withholding consent to it was reasonable in the circumstances. Ms Polonceaux made it clear I her email that Natasha only wanted a short-term stay (a “few weeks”). There was no indication in the correspondence between the parties that Natasha was happy to take over the tenancy until it expired on 18 February 2025 (some four months later).
I therefore find that Ms Ghate did not unreasonably withhold consent to the assignment of the tenancy.

Did Ms Ghate take back possession of the premises on 6 November?

As mentioned, Ms Polonceaux emailed Ms Ghate on 4 November stating that she had moved out and had left the key in the lock box at the premises for Quinovic (Ms Ghate had employed Quinovic to try to find a new tenant and manage that tenancy). In the email she states, “I will leave it with you to arrange a time for Nicole’s team to come around and have a look at the door and stove, any time is good since I’m not there, and they can access the house via the keysafe”. Ms Polonceaux claims that this was permission for Quinovic to enter to conduct viewings and complete repairs, but it did not give Ms Ghate permission to enter and complete a property inspection without giving the appropriate notice as required by section 48 of the Act.
Ms Ghate denies that the entry on 6 November was to complete a property inspection. She said it was simply to check cleaning issues that Quinovic had told her about and which could affect the ability to get another tenant.
However, even if I found Ms Ghate in breach of section 48 with respect to the entry on 6 November (and I make no finding on this), the remedy available to Ms Polonceaux is compensation or, in some circumstances, exemplary damages. It does not terminate the tenancy or mean that the landlord has taken back possession of it.
This claim is therefore also dismissed.
Ms Polonceaux also claims that Ms Ghate has not done sufficient to find a new tenant for the premises, including not reducing the rent payable.
When a tenant who leaves a fixed term tenancy before its expiry the tenant is liable to pay rent until the end of the fixed term or until a new tenant is found, whichever is the earlier: section 61(3)(b) of the Act. There is no obligation on a landlord to take steps to mitigate a tenant’s loss when he or she leaves a fixed term tenancy before its expiry: section 64(4) of the Act. Thus, the landlord can simply sit back and do nothing to find a new tenant and claim rent from the tenant until the fixed term ends (although most landlords, sensibly, do take steps to find a new tenant as quickly as possible to assist a departing tenant or to minimise their loss).
This means that the landlord is not in breach of any obligation owed to Ms Polonceaux and Mr Simpson regarding efforts to find a new tenant. Suppression
Ms Polonceaux and Mr Simpson applied, in their application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
However, Ms Polonceaux and Mr Simpson have been unsuccessful in their claims. Their application for name suppression is therefore not granted.

Order

The application is dismissed.

Reasons

Both parties attended the hearing.
The tenants, Ms Polonceaux and Mr Simpson, have a fixed term tenancy of the premises commencing on 19 February 2024 and ending on 18 February 2025.
Ms Polonceaux and Mr Simpson separated, and Mr Simpson moved out of the premises. On 27 September Ms Poloceaux advised Ms Ghate that she want to end the tenancy early. She found a new tenancy on 1 November and advised the landlord on 4 November that she had vacated and she had left the key in a lock box at the premises.
Ms Polonceaux seeks an order for reduction of the term of the tenancy claiming that Ms Ghate unreasonably refused consent to assign the tenancy to her friend. She also claims that Ms Ghate took back possession of the premises (and therefore the tenancy ended) when she completed an inspection of the premises on 6 November without first getting her consent or giving the appropriate notice.

There is a clause in the tenancy agreement prohibiting subletting or parting with possession of the premises. The clause also provides that an assignment is permitted with the landlord’s written consent, and consent must not be unreasonably withheld. This is consistent with section 43B of the Residential Tenancies Act 1986 (the Act).
On 18 October Ms Polonceaux emailed Ms Ghate stating that her friend, Natasha, “is looking for a place to stay for a few weeks” and “I was wondering if it would be ok for Natasha to stay at the house and look after it while Quinovic advertise it for rent to a long-term tenant. Natasha is aware the house is on the market and is able to move out at short notice back to her parent’s house. I would be keen to stay on the lease and pay the rent, as well as keep full responsibility of the house, while Natasha stays here.” Ms Polonceaux then states that she understands subletting is not allowed in her tenancy agreement and appears to suggest a formal assignment might be an option (although it is not clear from the wording of the email).
Ms Ghate replied that same day stating that she would not agree to a sublease and “you can check with your friend if she wants to take over the full new lease at the same [rent] per week. If not, I am afraid a short-term rental is not a solution”.
I am satisfied that this was a request by Ms Polonceaux for a short-term sublease, not a request to assign the tenancy for the remainder of its term. However, even if it was a request for an assignment to Natasha, I consider that withholding consent to it was reasonable in the circumstances. Ms Polonceaux made it clear I her email that Natasha only wanted a short-term stay (a “few weeks”). There was no indication in the correspondence between the parties that Natasha was happy to take over the tenancy until it expired on 18 February 2025 (some four months later).
I therefore find that Ms Ghate did not unreasonably withhold consent to the assignment of the tenancy.

Did Ms Ghate take back possession of the premises on 6 November?

As mentioned, Ms Polonceaux emailed Ms Ghate on 4 November stating that she had moved out and had left the key in the lock box at the premises for Quinovic (Ms Ghate had employed Quinovic to try to find a new tenant and manage that tenancy). In the email she states, “I will leave it with you to arrange a time for Nicole’s team to come around and have a look at the door and stove, any time is good since I’m not there, and they can access the house via the keysafe”. Ms Polonceaux claims that this was permission for Quinovic to enter to conduct viewings and complete repairs, but it did not give Ms Ghate permission to enter and complete a property inspection without giving the appropriate notice as required by section 48 of the Act.
Ms Ghate denies that the entry on 6 November was to complete a property inspection. She said it was simply to check cleaning issues that Quinovic had told her about and which could affect the ability to get another tenant.
However, even if I found Ms Ghate in breach of section 48 with respect to the entry on 6 November (and I make no finding on this), the remedy available to Ms Polonceaux is compensation or, in some circumstances, exemplary damages. It does not terminate the tenancy or mean that the landlord has taken back possession of it.
This claim is therefore also dismissed.
Ms Polonceaux also claims that Ms Ghate has not done sufficient to find a new tenant for the premises, including not reducing the rent payable.
When a tenant who leaves a fixed term tenancy before its expiry the tenant is liable to pay rent until the end of the fixed term or until a new tenant is found, whichever is the earlier: section 61(3)(b) of the Act. There is no obligation on a landlord to take steps to mitigate a tenant’s loss when he or she leaves a fixed term tenancy before its expiry: section 64(4) of the Act. Thus, the landlord can simply sit back and do nothing to find a new tenant and claim rent from the tenant until the fixed term ends (although most landlords, sensibly, do take steps to find a new tenant as quickly as possible to assist a departing tenant or to minimise their loss).
This means that the landlord is not in breach of any obligation owed to Ms Polonceaux and Mr Simpson regarding efforts to find a new tenant. Suppression
Ms Polonceaux and Mr Simpson applied, in their application, for a suppression order.
Section 95A of the Act provides that the Tribunal must, on the application of a party who has been wholly or substantially successful in the proceedings, order that the party’s name or identifying particulars not be published (unless the limited circumstances set out in the section apply).
However, Ms Polonceaux and Mr Simpson have been unsuccessful in their claims. Their application for name suppression is therefore not granted.

Tenancy Tribunal case 5071669 — Cleanliness at 2A Churton Crescent, Taita, Lower Hutt 5011

At a glance

Tenancy Tribunal case 5071669 — Cleanliness at 2A Churton Crescent, Taita, Lower Hutt 5011

At a glance

Claims & awards

Order

Reasons

Did Ms Ghate take back possession of the premises on 6 November?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did Ms Ghate take back possession of the premises on 6 November?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Claims & awards

Order

Reasons

Did Ms Ghate unreasonably refuse consent to the assignment of the tenancy?

Did Ms Ghate take back possession of the premises on 6 November?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did Ms Ghate unreasonably refuse consent to the assignment of the tenancy?

Did Ms Ghate take back possession of the premises on 6 November?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions