What was Tenancy Tribunal case 5103848 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 5103848?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5103848?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5103848?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256831-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5103848 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 5103848?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5103848?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5103848?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11256831-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5103848 — Cleanliness

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ name and identifying details.
It is declared that the existing tenants are [Tenant 1], [Tenant 2], [Tenant 3] and [Tenant 4].
The tenancy of [Tenant 1], [Tenant 2], [Tenant 3], [Tenant 4] at [Tenancy address suppressed] is varied so that it terminates, and possession is granted to Uno Property Management Limited As Agent For Madeleine Hoyee Lau at
59pm on 14 January 2024.

Reasons

The landlord and [Tenant 1] and [Tenant 2] attended the hearing which took place by telephone. These tenants had a support person.
The other two tenants did not attend. I telephoned them multiple times but there was no answer. I am satisfied they have been served at the hearing proceeded in their absence.
A party who brings a claim to the Tenancy Tribunal must prove that their version of events took place on the balance of probabilities (more likely than not). Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, where Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
While all evidence and submissions have not been referred to it has been considered.
The parties signed a fixed-term tenancy agreement which is due to end on 9 October 2025. I heard how it appeared that no one was presently living in the property.
[Tenant 1] and [Tenant 2] have made an application to end the tenancy. This is based on a withdrawal they say they have made due to family violence. They also have made an application on the basis of severe hardship.
The landlord’s clarified that they want a declaration as to who the present tenants are in this tenancy. They say that the other tenants ([Tenant 3] and [Tenant 4]) have also attempted to withdraw from the tenancy due to family violence. However, they are not sure if the withdrawal is valid. This is because no notice was given. They were only provided with statutory declarations. They are also unsure who the victim of the family violence is given competing accounts.
Section 56B, Residential Tenancies Act 1986 sets out the provisions relating to the withdrawal from a tenancy due to family violence. It provides in part: 56B Withdrawal from tenancy following family violence (1) A tenant under a fixed-term or periodic tenancy may withdraw from the tenancy by giving at least 2 days’ notice to the landlord if— (a) the notice is accompanied by qualifying evidence that the tenant has been a victim of family violence while a tenant of the premises; and (b) the notice is in the approved form and includes the prescribed information. [my emphasis]
I am not satisfied that [Tenant 3] and [Tenant 4] provided notice in the required form. They have only provided a statutory declaration each and did not provide notice in the approved form. Further, the statutory declarations provided are also insufficient as they do not make the necessary declaration that the tenant has been a victim of family violence during the course of the tenancy.
Because [Tenant 3] and [Tenant 4]’s withdrawal is not valid they remain as tenants.
[Tenant 1] and [Tenant 2] also cannot rely on the section 56B provisions of the RTA because they have also failed to comply with the requirements of the RTA when seeking to withdraw as a result of family violence. They did not provide notice in the approved form and no qualifying evidence was provided.
I note the Tribunal will not look behind a properly served approved form for withdrawal from a tenancy based on family violence with evidence. However, for both parties there has been no proper withdrawal.
The tenancy therefore has not ended for any of the tenants pursuant to their attempts to withdraw from the tenancy due to family violence.
I therefore will consider the application by [Tenant 1] and [Tenant 2] to end the fixed term under section 66 of the RTA. On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
A tenant in a joint tenancy is not able to give notice or apply to end a fixed term tenancy unless all joint tenants agree. Derbyshire v Mark and Maggies Property Company Limited [2013] NZTT 1477.
The application to end the fixed tenancy early was made by two of the four tenants. Having considered this carefully, despite not successfully withdrawing from the tenancy (and so remaining as tenants (see above)) I am satisfied that [Tenant 4] and [Tenant 3] do want the tenancy to end early – they have already tried to extract themselves from it and are no longer living there.
[Tenant 1] and [Tenant 2] referred to an incident whereby they say that one of their co-tenants assaulted [Tenant 1]. However, there was competing evidence before me in relation to this. [Tenant 1] and [Tenant 2] also referred to the other tenants as having a dog and the house being unsanitary due to the other tenants, in breach of the tenancy agreement.
The fact that a co-tenant(s) has left does not constitute grounds for the remaining tenants to seek a reduction in the term pursuant to section 66. Further, I consider the issues relating to the dog and cleanliness to be issues to be resolved between flat mates. Given the competing accounts, it is not sufficiently established what occurred on 14 November 2024.
Overall, I am not satisfied on that balance of probabilities that [Tenant 1] and [Tenant 2] have sufficiently proven that the fixed term tenancy should be terminated on this basis.
However, I am satisfied that the landlord wants the tenancy to end and expects the tenancy to have ended by mid-January. I heard that a new tenant has already been found and that tenancy will begin on 15 January 2025.
As set out above, it is clear from the statutory declaration provided and the text messages provided to the landlord that [Tenant 3] and [Tenant 4] do not want the tenancy to continue. [Tenant 1] and [Tenant 2] also want the tenancy to end as soon as possible. The landlord will need to give possession to the new tenant for the new tenancy on 15 January 2025.
I therefore find that the parties have agreed to a variation of the fixed term and the tenancy will terminate at 11.59pm on 14 January 2025.
For the avoidance of doubt, given the landlord requires the tenancy to terminate for the property to be available for 15 January to start the new tenancy, the tenants are not liable for fees arising from the varied fixed term termination date.
[Tenant 1] and [Tenant 2] seek suppression of their identifying details and I award this to them because they have had some success in that their tenancy has ended prior to October 2025. I also award the other tenant’s name suppression as their names may identify the other tenants (s 95A, RTA). The landlord did not seek suppression, so I do not need to consider this.
Given the outcome in this case I consider it fair for me to make no award in relation to the filing fees incurred by the parties. Each party is to bear the cost of their own application to the Tribunal.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ name and identifying details.
It is declared that the existing tenants are [Tenant 1], [Tenant 2], [Tenant 3] and [Tenant 4].
The tenancy of [Tenant 1], [Tenant 2], [Tenant 3], [Tenant 4] at [Tenancy address suppressed] is varied so that it terminates, and possession is granted to Uno Property Management Limited As Agent For Madeleine Hoyee Lau at
59pm on 14 January 2024.

Reasons

The landlord and [Tenant 1] and [Tenant 2] attended the hearing which took place by telephone. These tenants had a support person.
The other two tenants did not attend. I telephoned them multiple times but there was no answer. I am satisfied they have been served at the hearing proceeded in their absence.
A party who brings a claim to the Tenancy Tribunal must prove that their version of events took place on the balance of probabilities (more likely than not). Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, where Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
While all evidence and submissions have not been referred to it has been considered.
The parties signed a fixed-term tenancy agreement which is due to end on 9 October 2025. I heard how it appeared that no one was presently living in the property.
[Tenant 1] and [Tenant 2] have made an application to end the tenancy. This is based on a withdrawal they say they have made due to family violence. They also have made an application on the basis of severe hardship.
The landlord’s clarified that they want a declaration as to who the present tenants are in this tenancy. They say that the other tenants ([Tenant 3] and [Tenant 4]) have also attempted to withdraw from the tenancy due to family violence. However, they are not sure if the withdrawal is valid. This is because no notice was given. They were only provided with statutory declarations. They are also unsure who the victim of the family violence is given competing accounts.
Section 56B, Residential Tenancies Act 1986 sets out the provisions relating to the withdrawal from a tenancy due to family violence. It provides in part: 56B Withdrawal from tenancy following family violence (1) A tenant under a fixed-term or periodic tenancy may withdraw from the tenancy by giving at least 2 days’ notice to the landlord if— (a) the notice is accompanied by qualifying evidence that the tenant has been a victim of family violence while a tenant of the premises; and (b) the notice is in the approved form and includes the prescribed information. [my emphasis]
I am not satisfied that [Tenant 3] and [Tenant 4] provided notice in the required form. They have only provided a statutory declaration each and did not provide notice in the approved form. Further, the statutory declarations provided are also insufficient as they do not make the necessary declaration that the tenant has been a victim of family violence during the course of the tenancy.
Because [Tenant 3] and [Tenant 4]’s withdrawal is not valid they remain as tenants.
[Tenant 1] and [Tenant 2] also cannot rely on the section 56B provisions of the RTA because they have also failed to comply with the requirements of the RTA when seeking to withdraw as a result of family violence. They did not provide notice in the approved form and no qualifying evidence was provided.
I note the Tribunal will not look behind a properly served approved form for withdrawal from a tenancy based on family violence with evidence. However, for both parties there has been no proper withdrawal.
The tenancy therefore has not ended for any of the tenants pursuant to their attempts to withdraw from the tenancy due to family violence.
I therefore will consider the application by [Tenant 1] and [Tenant 2] to end the fixed term under section 66 of the RTA. On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
A tenant in a joint tenancy is not able to give notice or apply to end a fixed term tenancy unless all joint tenants agree. Derbyshire v Mark and Maggies Property Company Limited [2013] NZTT 1477.
The application to end the fixed tenancy early was made by two of the four tenants. Having considered this carefully, despite not successfully withdrawing from the tenancy (and so remaining as tenants (see above)) I am satisfied that [Tenant 4] and [Tenant 3] do want the tenancy to end early – they have already tried to extract themselves from it and are no longer living there.
[Tenant 1] and [Tenant 2] referred to an incident whereby they say that one of their co-tenants assaulted [Tenant 1]. However, there was competing evidence before me in relation to this. [Tenant 1] and [Tenant 2] also referred to the other tenants as having a dog and the house being unsanitary due to the other tenants, in breach of the tenancy agreement.
The fact that a co-tenant(s) has left does not constitute grounds for the remaining tenants to seek a reduction in the term pursuant to section 66. Further, I consider the issues relating to the dog and cleanliness to be issues to be resolved between flat mates. Given the competing accounts, it is not sufficiently established what occurred on 14 November 2024.
Overall, I am not satisfied on that balance of probabilities that [Tenant 1] and [Tenant 2] have sufficiently proven that the fixed term tenancy should be terminated on this basis.
However, I am satisfied that the landlord wants the tenancy to end and expects the tenancy to have ended by mid-January. I heard that a new tenant has already been found and that tenancy will begin on 15 January 2025.
As set out above, it is clear from the statutory declaration provided and the text messages provided to the landlord that [Tenant 3] and [Tenant 4] do not want the tenancy to continue. [Tenant 1] and [Tenant 2] also want the tenancy to end as soon as possible. The landlord will need to give possession to the new tenant for the new tenancy on 15 January 2025.
I therefore find that the parties have agreed to a variation of the fixed term and the tenancy will terminate at 11.59pm on 14 January 2025.
For the avoidance of doubt, given the landlord requires the tenancy to terminate for the property to be available for 15 January to start the new tenancy, the tenants are not liable for fees arising from the varied fixed term termination date.
[Tenant 1] and [Tenant 2] seek suppression of their identifying details and I award this to them because they have had some success in that their tenancy has ended prior to October 2025. I also award the other tenant’s name suppression as their names may identify the other tenants (s 95A, RTA). The landlord did not seek suppression, so I do not need to consider this.
Given the outcome in this case I consider it fair for me to make no award in relation to the filing fees incurred by the parties. Each party is to bear the cost of their own application to the Tribunal.

Tenancy Tribunal case 5103848 — Cleanliness

At a glance

Tenancy Tribunal case 5103848 — Cleanliness

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions