Published tribunal order
Tenancy Tribunal case 5142768 — Rent arrears
Decided 11 Mar 2025 · Published 11 Mar 2025 · Application 5142768
- Rent arrears
Party names are redacted in the official published order.
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/s] must pay North Island Community Services Limited T/A Propertyscouts Whangarei As Agent For K Lowe $0.00 immediately, being rent arrears to 11 March 2025.
Reasons
- The landlord attended the video hearing.
- The tenant did not attend the hearing by Teams video link. Telephone calls were made to the tenant on the number provided at the allocated hearing time. There was no response to the calls. The Tribunal may hear matters in the absence of a party where satisfied that notice of the hearing has been given. I am satisfied that notice was given.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond.
Should the tenancy be terminated?
- The Tribunal shall terminate a tenancy where: • on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and • on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and • each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and • the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. See section 55(1)(aa) Residential Tenancies Act 1986 (“RTA”).
- In this case, notices were sent to the tenant on 8 January 2024 for the rent period commencing 20 December 2024, again on 8 January 2025 for the rent period commencing 27 December 2024 and finally on 13 January 2025 for the rent period commencing 3 January 2025.
- The first and second notices were served on the tenant on the same day, albeit that they relate to different rent periods. The purpose of delivering a notice on different dates, which sets out the requirements of s 55(1)(aa) RTA, is so that the tenant has the ability to apply to the Tribunal for orders challenging the notice or to otherwise seek to correct an error. Otherwise, a landlord could deliver three notices on the same day, for three separate periods and the tenant would have no opportunity to correct their payment process to ensure that rent payments are on time and in full.
- I do not consider that the second notice is therefore valid and the landlord’s application under s.55(1)(aa) RTA is dismissed.
- The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
Should the tenancy be terminated?
- The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) RTA.
- Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
- The tenant has breached their obligations by failing to pay rent on time and in full.
- The landlord served a 14-day notice on the tenant on 6 January 2025 requiring the tenant to pay arrears of $943.86 and pay rent as and when it fell due during the 14 day period .The tenant did not remedy the breach within the required period.
- Having made that finding the Tribunal must consider if It would be inequitable to refuse to terminate the tenancy .
- In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: a. The history of the tenancy. b. Whether there had been a persistent failure after repeated warnings. c. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. d. Whether the breach was inadvertent or deliberately committed. e .The conduct of the landlord. f. The gravity of the breach. g. Whether termination is a proportionate response to the breach.
- The rent summary for the premises shows that payments have been intermittent. There have been periods where the rent has been in credit and also periods where rent has been in arrears. Of recent times, the rent has not generally been more than a week in arrears.
- Despite the landlord’s failure with the s.55(1)(aa) RTA process, the tenant must have been aware of the ongoing issues with rent payments.
- The rent payment history does not indicate that the tenant is unlikely to comply with their obligations in the future.
- Persistent rent payment issues can only be deliberate.
- No issue can be taken with the landlord’s conduct.
- I do not consider the gravity of the breach to be substantial . As of the date of the hearing, rent arrears sit at $199.29, a little over two days rent. During the 14 day period referred to in the notice, the tenant made rent payments totalling $1,677.43.
- In the circumstances described above, I do not consider termination of the tenancy to be a proportionate response and the landlord’s application for termination under s.56 RTA is dismissed.
- The tenant is reminded that the obligation to pay rent on time and in full is an essential part of the tenancy contract. A continued failure to do so will inevitably result in the matter coming before the Tribunal again.
- The landlord provided rent records which prove that the arrears on the hearing date are $199.29 and the tenant is ordered to pay those arrears.
- As the landlord has not been either wholly or substantially successful in this hearing, I make no order for reimbursement of the filing fee.
- The tenant having been substantially successful in this hearing an order is made suppressing the tenant’s name and details.