What was Tenancy Tribunal case 5102088 about?

The tribunal order states: The names and identifying details of the landlord and tenant, and the tenancy

How much money was awarded in case 5102088?

Difference In Rent: $1,230.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Loss Of Rent: $1,968.57 awarded to landlord

What type of tenancy dispute was case 5102088?

The dispute type was not classified.

Where can I read the official tribunal order for case 5102088?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11960253-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5102088 about?

The tribunal order states: The names and identifying details of the landlord and tenant, and the tenancy

How much money was awarded in case 5102088?

Difference In Rent: $1,230.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Loss Of Rent: $1,968.57 awarded to landlord

What type of tenancy dispute was case 5102088?

The dispute type was not classified.

Where can I read the official tribunal order for case 5102088?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11960253-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5102088 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5102088 — net $1,105.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Loss of rent to 4 December 2024	$1,968.57	Loss of rent to 4 December 2024
Difference in rent to 20 September 2025	$1,230.00	Difference in rent to 20 September 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,105.57
Total payable by Tenant to Landlord	$1,105.57

Order

The names and identifying details of the landlord and tenant, and the tenancy address, are suppressed.
[The tenant/s] must pay [The landlord/s] $1,105.57 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,120.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended two hearings held remotely. There were difficulties receiving evidence and at times with the remote participation however I am satisfied both parties have been fairly heard.
This matter relates to a tenancy of a basement flat (with a house above) which started on 21 September 2024 and was intended to be for a fixed term to 20 September 2025.
The tenant moved in but was immediately unhappy about the level of cleanliness and odour in the flat. She cleaned and deodorised over the first weekend but then discovered she could not sleep due to noise from the upstairs flat.
She communicated her concerns to the landlord’s agent. On 1 October 2024 she asked to be released from the tenancy.
The next day, the parties signed a written agreement for early release from the tenancy. [The tenant/s] moved out on 11 October 2024. She continued to pay rent up until a final payment on 31 October 2024 (which covered rent up to 1 November 2024).
The landlord readvertised and new tenants were found for the property from 5 December 2024.
The landlord claims:- a. Lost rent under the fixed term contract up to 4 December 2024 (the day before the new tenants moved in) = $1,968.57, and b. The difference between rent payable under this contract ($530 per week) and that payable by the new tenants ($500 per week) being $30 week for the 41 weeks until the end of this contract (20 September 2025) = $1,230.00.
The tenant has already paid the landlord $230.58 for expenses related to the early ending of the tenancy.
The tenant says the reason she moved out was that the property was not fit for purpose, partly because of a lack of cleanliness but mostly because of noise disturbance from upstairs. She says she has acted reasonably by paying rent for several weeks after she moved out, as well as the expenses for readvertising, and does not think it is fair that she should have to pay more to the landlord.
The tenant raised these concerns at the first hearing. I allowed her to file a cross- application seeking reduction of the fixed term of the tenancy. The issues
The tenant says she did not receive what she expected to receive under the contract (the tenancy agreement), that she did what she could to make it work (by cleaning the unit herself), but that noise from the upstairs flat which prevented her sleeping meant it was not habitable for her.
A tenancy agreement is a contract and contract law applies as well as the Residential Tenancies Act 1986 (RTA). The RTA is the main legislation applying to landlord and tenants.
In general, a fixed term tenancy agreement is a binding contract that cannot be ended early except if both parties agree. 1
In this case, the parties did agree to end the contract early and signed another contract, an “Agreement for Early Release from a Fixed Term Tenancy”.
The agreement for early release specifically states that the tenant will remain liable for:- a. Expenses reasonably incurred by the landlord in relation to the early release and reletting of up to $756.50 +gst; b. Payment of current rent from the move out date until the premises are re-let; c. Payment of any difference between the current rent and the rent payable by replacement tenants until the termination date of the fixed term contract.
This second agreement is also a binding contract.
The tenant is required to comply with that (and pay the compensation she has agreed to under it) unless she can show that she has some other right to end the fixed term tenancy early or the Tribunal orders a different amount of compensation after reducing the fixed term under section 66 RTA. Did the tenant have a right to end the fixed term tenancy early because of her concerns about cleanliness and noise from upstairs?
The rules about cancelling contracts are contained in the Contract and Commercial Law Act 2017 (“CCLA”) unless the tenancy agreement contains different rules.
Put simply, one party can only cancel a contract if the other party commits a breach of something that is essential, or the effect of the breach is substantial. 2
In this case, the relevant legal duties of the landlord are:- a. To provide tenancy premises “in a reasonable state of cleanliness” (s45(1)(a) RTA), and b. ensure the property meets all health and safety and building legislation (s45(1)(c) RTA), and c. take all reasonable steps to ensure none of the landlord’s other tenants interfere with the reasonable peace, comfort or privacy of the tenant (s45(1)(e) RTA.
I address these separately. 1 A fixed term tenancy can be terminated by the giving of notice in the specific circumstances listed in section 50(1) Residential Tenancies Act 1986 which include where premises are unlawful, uninhabitable, a tenant has been charged with assault on a landlord, or a tenant has withdrawn from the tenancy due to proven family violence. 2 Section 37 CCLA. Cleanliness
The landlord supplied a comprehensive range of photographs from the ingoing inspection report. These do show a few smudges and spots of sticky residue visible on the top of the rangehood but otherwise there are no obvious unclean areas. The ingoing report also notes that the carpet was professionally cleaned and deodorized and says “odour removed”.
The tenant also supplied photographs. These mostly show her cleaning efforts. The only photo taken before cleaning is of the side of the kitchen drawers where there are spots of sticky, yellow residue visible. A photo showing soapy cleaning product on the ceramic cooktop does show a light ring of yellow residue.
The tenant described a strong cooking odour and said she had to scrub the rangehood filters and wash them three times, deodorise the carpet further (there is a photo showing this) and the roller blinds, clean the shower and floors, wipe yellow oily residue from the walls in the kitchen, and use oven cleaner to clean the rangehood. The main issue seems to be strong-smelling cooking oil residue.
I accept that the tenant felt the unit was not clean and the odour was strong. That was her opinion. However, the photographs she supplied do not prove that the premises were not reasonably clean from an objective standard.
The landlord’s photographs from the start of the tenancy satisfy me the premises were provided in a reasonable state of cleanliness. The landlord did not breach its legal duty regarding cleanliness. Noise from upstairs unit
The tenant said she could hear footsteps, doors and cupboards banging, the hum of conversations, and snoring from the upstairs house. She explained that some of these noises occurred at night and that she could not sleep through them. In her view this made the unit unliveable for her.
She provided video and audio evidence to try to illustrate the noise she was disturbed by. It was difficult to hear clearly but I could hear some noise. I accept the noise disturbed the tenant and that she is genuine in describing the impact on her.
The tenant suggested that there was inadequate soundproofing between the basement unit and the upstairs house but supplied no evidence to support or verify this theory.
At my request, the landlord has supplied evidence that the basement flat is consented as a minor dwelling and received code of compliance from [City] Council in 2017. 3 The landlord did not provide details of any soundproofing that was required but the issue of a compliance certificate satisfies me that any legal requirements were met.
On the evidence available, the unit complies with all building legislation requirements, so the landlord has not breached its duty in this regard; s45(1)(c) RTA.
A landlord must also take reasonable steps to ensure other tenants do not interfere with the reasonable peace, comfort, or privacy of this tenant; s45(1)(e) RTA. In this case, the tenant confirmed to the property manager that she was not complaining about the upstairs tenants. It was the noise of their normal day-to-day living that disturbed her.
The landlord took the tenant’s concerns seriously, asked the owners about the soundproofing and listened to the tenant’s recordings of the noise. The landlord then acted reasonably in agreeing to consent to early release from the tenancy. There is no breach of this duty.
My decision is that the tenant did not have a right to cancel the fixed term contract in these circumstances. She was reliant on the landlord agreeing to do so, which it did, but on condition she meet any rent loss and other expenses. Has there been an unforeseen change in the tenant’s circumstances and severe hardship outweighing the landlord’s hardship? Section 66 RTA
The RTA does provide for the Tribunal to 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.
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.
Section 66 sets a high threshold because if a landlord and tenant sign a contract then they should usually have to follow through with it.
I have decided that the premises were provided in a reasonable state of cleanliness and that there was no breach by the landlord in regard to the noise issues.
I have sympathy for the tenant because she discovered that she was disturbed by the noise from upstairs to the extent that she could not sleep. However, it cannot 3 Verification of this was provided by the landlord. be said that noise from an upstairs house is unforeseen if you rent a downstairs flat. In fact, you could say it is to be expected that there will be some noise.
My decision is that the tenant has not shown a legal ground or reason why she should not be required to pay the compensation she agreed to under the early release agreement.
I note that the tenant feels it was not reasonable that it took eight weeks for the landlord to find a replacement tenant. There is nothing to suggest the landlord did not do everything it reasonably could to find replacement tenants. The property manager explained that it did advertise widely, and I accept that.
Unfortunately, it did take that long to find new tenants and unfortunately this was at a rent $30.00 less per week than what the tenant had agreed to pay. The loss claimed by the landlord is its real loss. Orders
I award the landlord compensation for loss of rent due to it under the terms of the fixed term tenancy and the early release agreement as applied for.
I also award the landlord the filing fee.
The result of the orders is that the bond is refunded to the landlord and the tenant is liable to pay the balance owing.
I order suppression of both the landlord and tenant names on this occasion. My reason for this is because both parties acted reasonably throughout this process. The landlord agreed to release the tenant from the fixed term contract because the premises did not suit her, and the tenant paid rent for four weeks after she moved out and the expenses for the early termination.

Claims and awards in Tenancy Tribunal application 5102088 — net $1,105.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Loss of rent to 4 December 2024	$1,968.57	Loss of rent to 4 December 2024
Difference in rent to 20 September 2025	$1,230.00	Difference in rent to 20 September 2025
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,105.57
Total payable by Tenant to Landlord	$1,105.57

Order

The names and identifying details of the landlord and tenant, and the tenancy address, are suppressed.
[The tenant/s] must pay [The landlord/s] $1,105.57 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,120.00 ([Bond number suppressed]) to [The landlord/s] immediately.

Reasons

Both parties attended two hearings held remotely. There were difficulties receiving evidence and at times with the remote participation however I am satisfied both parties have been fairly heard.
This matter relates to a tenancy of a basement flat (with a house above) which started on 21 September 2024 and was intended to be for a fixed term to 20 September 2025.
The tenant moved in but was immediately unhappy about the level of cleanliness and odour in the flat. She cleaned and deodorised over the first weekend but then discovered she could not sleep due to noise from the upstairs flat.
She communicated her concerns to the landlord’s agent. On 1 October 2024 she asked to be released from the tenancy.
The next day, the parties signed a written agreement for early release from the tenancy. [The tenant/s] moved out on 11 October 2024. She continued to pay rent up until a final payment on 31 October 2024 (which covered rent up to 1 November 2024).
The landlord readvertised and new tenants were found for the property from 5 December 2024.
The landlord claims:- a. Lost rent under the fixed term contract up to 4 December 2024 (the day before the new tenants moved in) = $1,968.57, and b. The difference between rent payable under this contract ($530 per week) and that payable by the new tenants ($500 per week) being $30 week for the 41 weeks until the end of this contract (20 September 2025) = $1,230.00.
The tenant has already paid the landlord $230.58 for expenses related to the early ending of the tenancy.
The tenant says the reason she moved out was that the property was not fit for purpose, partly because of a lack of cleanliness but mostly because of noise disturbance from upstairs. She says she has acted reasonably by paying rent for several weeks after she moved out, as well as the expenses for readvertising, and does not think it is fair that she should have to pay more to the landlord.
The tenant raised these concerns at the first hearing. I allowed her to file a cross- application seeking reduction of the fixed term of the tenancy. The issues
The tenant says she did not receive what she expected to receive under the contract (the tenancy agreement), that she did what she could to make it work (by cleaning the unit herself), but that noise from the upstairs flat which prevented her sleeping meant it was not habitable for her.
A tenancy agreement is a contract and contract law applies as well as the Residential Tenancies Act 1986 (RTA). The RTA is the main legislation applying to landlord and tenants.
In general, a fixed term tenancy agreement is a binding contract that cannot be ended early except if both parties agree. 1
In this case, the parties did agree to end the contract early and signed another contract, an “Agreement for Early Release from a Fixed Term Tenancy”.
The agreement for early release specifically states that the tenant will remain liable for:- a. Expenses reasonably incurred by the landlord in relation to the early release and reletting of up to $756.50 +gst; b. Payment of current rent from the move out date until the premises are re-let; c. Payment of any difference between the current rent and the rent payable by replacement tenants until the termination date of the fixed term contract.
This second agreement is also a binding contract.
The tenant is required to comply with that (and pay the compensation she has agreed to under it) unless she can show that she has some other right to end the fixed term tenancy early or the Tribunal orders a different amount of compensation after reducing the fixed term under section 66 RTA. Did the tenant have a right to end the fixed term tenancy early because of her concerns about cleanliness and noise from upstairs?
The rules about cancelling contracts are contained in the Contract and Commercial Law Act 2017 (“CCLA”) unless the tenancy agreement contains different rules.
Put simply, one party can only cancel a contract if the other party commits a breach of something that is essential, or the effect of the breach is substantial. 2
In this case, the relevant legal duties of the landlord are:- a. To provide tenancy premises “in a reasonable state of cleanliness” (s45(1)(a) RTA), and b. ensure the property meets all health and safety and building legislation (s45(1)(c) RTA), and c. take all reasonable steps to ensure none of the landlord’s other tenants interfere with the reasonable peace, comfort or privacy of the tenant (s45(1)(e) RTA.
I address these separately. 1 A fixed term tenancy can be terminated by the giving of notice in the specific circumstances listed in section 50(1) Residential Tenancies Act 1986 which include where premises are unlawful, uninhabitable, a tenant has been charged with assault on a landlord, or a tenant has withdrawn from the tenancy due to proven family violence. 2 Section 37 CCLA. Cleanliness
The landlord supplied a comprehensive range of photographs from the ingoing inspection report. These do show a few smudges and spots of sticky residue visible on the top of the rangehood but otherwise there are no obvious unclean areas. The ingoing report also notes that the carpet was professionally cleaned and deodorized and says “odour removed”.
The tenant also supplied photographs. These mostly show her cleaning efforts. The only photo taken before cleaning is of the side of the kitchen drawers where there are spots of sticky, yellow residue visible. A photo showing soapy cleaning product on the ceramic cooktop does show a light ring of yellow residue.
The tenant described a strong cooking odour and said she had to scrub the rangehood filters and wash them three times, deodorise the carpet further (there is a photo showing this) and the roller blinds, clean the shower and floors, wipe yellow oily residue from the walls in the kitchen, and use oven cleaner to clean the rangehood. The main issue seems to be strong-smelling cooking oil residue.
I accept that the tenant felt the unit was not clean and the odour was strong. That was her opinion. However, the photographs she supplied do not prove that the premises were not reasonably clean from an objective standard.
The landlord’s photographs from the start of the tenancy satisfy me the premises were provided in a reasonable state of cleanliness. The landlord did not breach its legal duty regarding cleanliness. Noise from upstairs unit
The tenant said she could hear footsteps, doors and cupboards banging, the hum of conversations, and snoring from the upstairs house. She explained that some of these noises occurred at night and that she could not sleep through them. In her view this made the unit unliveable for her.
She provided video and audio evidence to try to illustrate the noise she was disturbed by. It was difficult to hear clearly but I could hear some noise. I accept the noise disturbed the tenant and that she is genuine in describing the impact on her.
The tenant suggested that there was inadequate soundproofing between the basement unit and the upstairs house but supplied no evidence to support or verify this theory.
At my request, the landlord has supplied evidence that the basement flat is consented as a minor dwelling and received code of compliance from [City] Council in 2017. 3 The landlord did not provide details of any soundproofing that was required but the issue of a compliance certificate satisfies me that any legal requirements were met.
On the evidence available, the unit complies with all building legislation requirements, so the landlord has not breached its duty in this regard; s45(1)(c) RTA.
A landlord must also take reasonable steps to ensure other tenants do not interfere with the reasonable peace, comfort, or privacy of this tenant; s45(1)(e) RTA. In this case, the tenant confirmed to the property manager that she was not complaining about the upstairs tenants. It was the noise of their normal day-to-day living that disturbed her.
The landlord took the tenant’s concerns seriously, asked the owners about the soundproofing and listened to the tenant’s recordings of the noise. The landlord then acted reasonably in agreeing to consent to early release from the tenancy. There is no breach of this duty.
My decision is that the tenant did not have a right to cancel the fixed term contract in these circumstances. She was reliant on the landlord agreeing to do so, which it did, but on condition she meet any rent loss and other expenses. Has there been an unforeseen change in the tenant’s circumstances and severe hardship outweighing the landlord’s hardship? Section 66 RTA
The RTA does provide for the Tribunal to 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.
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.
Section 66 sets a high threshold because if a landlord and tenant sign a contract then they should usually have to follow through with it.
I have decided that the premises were provided in a reasonable state of cleanliness and that there was no breach by the landlord in regard to the noise issues.
I have sympathy for the tenant because she discovered that she was disturbed by the noise from upstairs to the extent that she could not sleep. However, it cannot 3 Verification of this was provided by the landlord. be said that noise from an upstairs house is unforeseen if you rent a downstairs flat. In fact, you could say it is to be expected that there will be some noise.
My decision is that the tenant has not shown a legal ground or reason why she should not be required to pay the compensation she agreed to under the early release agreement.
I note that the tenant feels it was not reasonable that it took eight weeks for the landlord to find a replacement tenant. There is nothing to suggest the landlord did not do everything it reasonably could to find replacement tenants. The property manager explained that it did advertise widely, and I accept that.
Unfortunately, it did take that long to find new tenants and unfortunately this was at a rent $30.00 less per week than what the tenant had agreed to pay. The loss claimed by the landlord is its real loss. Orders
I award the landlord compensation for loss of rent due to it under the terms of the fixed term tenancy and the early release agreement as applied for.
I also award the landlord the filing fee.
The result of the orders is that the bond is refunded to the landlord and the tenant is liable to pay the balance owing.
I order suppression of both the landlord and tenant names on this occasion. My reason for this is because both parties acted reasonably throughout this process. The landlord agreed to release the tenant from the fixed term contract because the premises did not suit her, and the tenant paid rent for four weeks after she moved out and the expenses for the early termination.

Tenancy Tribunal case 5102088 — Tenancy dispute

At a glance

Tenancy Tribunal case 5102088 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions