What was Tenancy Tribunal case 5163686 about?

The tribunal order states: The Tribunal orders suppression of the Tenants names and identifying details,

How much money was awarded in case 5163686?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5163686?

The primary dispute was Rent arrears. Related themes: 14-day notice, Healthy homes, Property damage.

Where can I read the official tribunal order for case 5163686?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12074630-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5163686 about?

The tribunal order states: The Tribunal orders suppression of the Tenants names and identifying details,

How much money was awarded in case 5163686?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5163686?

The primary dispute was Rent arrears. Related themes: 14-day notice, Healthy homes, Property damage.

Where can I read the official tribunal order for case 5163686?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12074630-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5163686 — Rent arrears

Order

The Tribunal orders suppression of the Tenants names and identifying details, along with the name of the previous tenant and any reference to the application number of the previous tenant’s order.
The landlord’s claim is dismissed.

Reasons

Ms Lam, representing the landlord, attended the hearing as did [Tenants 1, 2 and 3] (tenants). [Tenant 4] did not attend the hearing.
[Tenant 5] is also named as a tenant on the tenancy agreement but said they had told him about the hearing and claim prior to the hearing. The landlord did not name him as a tenant/respondent in this claim. However I consider the merits and justices of the matter are such that this matter needed to be heard and that the outcome of the claim is not to the detriment of [Tenant 5] 1 . [Tenant 5] will be sent a copy of this order by the Tribunal.
The landlord claims: 1 Refer the provisions of section 85, Residential Tenancies Act a) termination and possession of the premises as they have issued a notice to the tenants terminating the tenancy and the tenants remain in possession of the premises, b) rent arrears, c) that [Tenants 2 and 3]’s son has caused damage as he has dug a large hole and has illegally occupied and locked a shed. Background
Prior to this tenancy commencing the tenants were all living in the premises and paying rent to the previous tenant [The previous tenant] (a subletting). Each tenant was paying a different amount of rent. The landlord’s property manager came to the property concerned that rent was not being paid and learned that [The previous tenant] was not living in the house but that the tenants were. The landlord offered the tenants a tenancy agreement on the same terms as they had with [The previous tenant], which the tenants accepted.
For clarity I note that in the remainder of my decision all of my references to the landlord refer to the actions of the property manager, Auckland and Waikato Property Management Limited 2 .
The tenancy premises is part of a larger rural residential property. The previous tenancy ([The previous tenant]’s tenancy) was for the entire property. The landlord and the tenants agreed at the hearing that this tenancy was from the road frontage to the end of the shed behind the chicken shed, which is around one-third of the total land area of the property.
The tenancy is a periodic tenancy; the total weekly rent is $760.00. The landlord has set out in the tenancy agreement the amount each tenant is to pay in rent each week: [Tenant 1] - $225; [Tenants 2 and 3] $212.50; [Tenant 5] $160.00; [Tenant 4] $162.50
The tenancy agreement also sets out that each tenant is to pay bond amounting to 4 weeks of the weekly rent they are liable to pay.
The landlord claims [Tenant 4] moved out of the premises on 24 January 2025. The tenants attending the Tribunal hearing agree that is when he moved out. 2 The definition of ‘landlord’ in the Residential Tenancies Act includes “an agent of the landlord”. Has the landlord validly terminated the tenancy? If so, is the landlord entitled to possession?
The landlord has served two notices on the tenants which it maintains are valid termination notices. First notice:
The first notice was emailed to the tenants on 24 January 2025. It states: “We hereby serve you with a 90-day notice to vacate the premises located at [Tenancy address suppressed], as per the Residential Tenancies Act 1986. The notice period will commence from the date of delivery of this notice, and you are required to vacate the property on or before 23 April 2025.”
I find the notice to terminate is invalid for the following reasons: a) Section 51 of the Residential Tenancies Act 1986 (RTA) sets out when a landlord may terminate a periodic tenancy. Section 51(3) requires every notice to set out the reasons for termination. This notice does not set out any reasons for termination. At the time the notice was given a landlord could only terminate for the reasons included in section 51 and could not terminate without a specific reason. From 30 January 2025 a landlord may terminate a periodic tenancy by giving at least 90 days’ notice as a result of the Residential Tenancies Amendment Act 2024. However this provision was not in force at the time the notice was given. b) In giving the tenants the 90 day notice the landlord said it relied on the following term in the tenancy agreement: “Bond amount: weekly rent of each tenant x 4 (“if all bond can’t be collected by 20 January 2025, a 90-day tenancy agreement termination notice will be served).” However even though the tenants have signed the tenancy agreement with this term in it, it has no effect. Section 11, RTA provides that any agreement entered into in respect of a tenancy which is inconsistent with the provisions of the RTA, particularly where it waives the tenant’s rights under the RTA, shall be of no effect. This provision allows the landlord to terminate the tenancy by giving 90 days’ notice if bond is not paid by the date specified. There was no right for a landlord to take such action under the RTA at the time the agreement was signed or the termination notice was served. c) In any event, section 136(9) sets out that when a notice is served by email before 5pm it is deemed to be served on the day the email was transmitted. However s 136A provides that where a notice is given that prescribes a following period, such as a 90-day notice, the period commences on the first day after the notice was given under section 136. Therefore under the landlord’s notice day 1 of the 90 day period commenced on 25 January, which means only 89 days’ notice was given to the tenants. Second notice
On 31 January 2025 the landlord sent the tenants a 14 day notice to pay the bond by email:
The landlord confirmed at the hearing that they considered the tenancy had terminated as the tenants had not paid the bond by 13 February 2025 as required by the 14 day notice.
I find this termination is not valid for the following reasons.
When a tenant has breached a term of the tenancy agreement of the RTA which is capable of remedy a landlord is able to give a 14 day notice and, if the breach is not remedied within the required period, the landlord may make an application to the Tenancy Tribunal for termination on that basis. The Tribunal may terminate the tenancy under such an application if the breach is of such a nature or of such an extent that it would be inequitable or unfair to refuse to terminate the tenancy (see section 56, RTA).
Section 56, nor any other provision in the RTA, gives the landlord the right to terminate the tenancy if a breach is not remedied within the period required under the notice. That is, the landlord must file an application with the Tribunal seeking a termination order.
In any event the landlord has not given the tenant a valid 14 day notice. The landlord has calculated the 14 day period starting on the date the notice was served, rather than on the day after the notice is served as required under section 136A.
In conclusion, I find the landlord has not validly terminated the tenancy as the landlord has: •issued an invalid 14 day notice under section 56, as it has only provided 13 days in giving the notice, and has no right to terminate the tenancy of their own volition if the breach specified in the 14 day notice is not remedied; •issued an invalid 90 day notice as it has only provided 89 days in giving the notice, and has not given sufficient reason as required by section 51 to terminate the tenancy.
Despite the landlord not having grounds to terminate the tenancy, the tenants have relied on the validity of the landlord’s notices and [Tenant 1] and [Tenant 5] have vacated the premises. [Tenants 2 and 3] have not yet been able to find alternative accommodation but are actively and urgently trying to find somewhere else to live. As stated above, [Tenant 4] moved out earlier on 24 January.
The actions of the landlord in issuing two invalid termination notices, and including terms in the tenancy agreement which are inconsistent with the provisions of the RTA and lessen the rights of the tenants, is in my view completely unprofessional. The landlord has effectively misrepresented to the tenants that it had a right to terminate the tenancy. Tenants should reasonably be able to expect property managers know and correctly apply tenancy law.

Should the Tribunal terminate the tenancy?

The landlord considered its application included an application to the Tribunal to terminate the tenancy on the basis the bond has not been paid and it has issued a 14 day notice. I decline to terminate the tenancy as, for the reasons given above I find the landlord has not provided a valid 14 day notice to the tenants.

How much is owed for rent?

The landlord claims [Tenant 4] failed to pay his share of the rent from 7 February 2024 and seeks 4 weeks rent to 6 March 2025 ($650.00). [Tenants 2 and 3] said they have been paying the total weekly rent due of $760.00 since 7 March even though they are the only tenants remaining in the premises.
During the hearing it came to my attention that the Tribunal had terminated the previous tenancy ([The previous tenant]’s tenancy 3 ) on 16 January 2025 and that rent was awarded to the landlord until that date 4 .
The importance and effect of the Tribunal’s decision for the previous tenancy is that the landlord held out to the Tribunal that the previous tenancy was still continuing when this tenancy had started on 20 December 2024, and has an order for the previous tenants to pay rent under 16 January 2025. The Tribunal order records: “The landlord has provided rent records which prove the amount owing at the end of the tenancy.”
The tenants under this tenancy have been paying rent since 20 December 2024. A landlord is not entitled to receive rent for premises under two different tenancy agreements for the same period. This is commonly called “double dipping”. I find the tenants under this tenancy have no liability for rent before 17 January 2024. 3 There were also other tenants named under the previous tenancy agreement 4 [Citation redacted].
Where there is more than one tenant that has entered into a tenancy agreement, it is not usual for the agreement to record what each tenant individually is to pay. That is, it is usual where there are joint tenants for the agreement to record that the tenants are liable to pay the total weekly rent. Tenants who enter into a tenancy together are liable "jointly and severally". This means that all tenants are liable (even without personal fault) for breaches of the obligations by the other tenants.
Here that is not the case. The tenancy is a joint tenancy but the agreement limits the liability of the tenants in relation to rent, and other specified matters such as bond, power and water, as is specified in the agreement. As set out above the amount of rent each tenant was paying was different.
A landlord is required to keep a proper business record showing all payments of rent paid by the tenants (see section 30, RTA). The rent summary provided by the landlord is not a proper record of rent for this tenancy as it shows rent commencing on 20 December and does not show the rent owed and paid by each individual tenant. The rent summary provided by the landlord therefore does not reflect the tenancy agreement requirements of how much rent each tenant is required to pay. There should be a separate record for each tenant ([Tenants 2 and 3] being treated as one tenant).
I decline to make an award for the rent claimed by the landlord for this reason. Regardless, I am not satisfied that [Tenant 4] owes any rent. When I take the rent [Tenant 4] is owed by the landlord (for rent paid from 20 December 2024 to 6 January 2025) into account, along with the landlord’s notice to him that if the bond is not paid the tenancy will terminate on 27 February 2025, I am not satisfied [Tenant 4] owes any rent.
It is open to all the tenants to bring a claim for rent they have overpaid the landlord if the parties cannot resolve that directly.
The Tribunal is required to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants. In doing so the Tribunal needs to consider the general principles of law and the substantial merits and justices of the case (section 85, RTA).
The general principles of law in relation to rent tenants are due to pay to landlords is a matter of contract law. The tenancy agreement is a contact and as such binds the parties to the terms where both parties intended to contract on agreed terms and the terms are certain and clear.
The contract is clear that [Tenants 2 and 3] are to pay $225.00 a week in rent. I find they have no obligation to pay any more than that, and are certainly not liable to pay the total weekly rent of $760.00, which they said they have been paying from 7 March 2025. Any rent they have paid in excess of $225.00/week is overpaid rent, and may be treated as a rent credit until it is used, or the tenants can make an application for overpayment of rent to the Tribunal, or the tenants could apply it to meet their obligation to pay their bond, being $225.00 x 4 = $1,070.00. If this is done the landlord is reminded of their obligation to forward the rent to the Bond Centre (see section 19, RTA).
Because of the egregious, appalling conduct of the landlord I am satisifed on the merits and justices of this matter that it would not be reasonable for the tenants that have vacated to continue, or have any continued liability for, rent payments from the time they have moved out. There would be no justice or fairness in that. Has there been a breach by the tenants in relation to the hole that has been dug or whether there has been any illegal occupation and locking of a shed?
The landlord claims [Tenants 2 and 3]’s son has dug a large hole at the property and has no right to occupy a shed, or instal a lock on the shed.
The boundaries of the exterior parameter of the tenancy premises were agreed by the landlord and the tenant at the hearing.
It is not in dispute that the large hole that has been dug or the shed is located within the tenancy premises. The hole and the shed are located on the property outside of the area that is the subject of the tenancy agreement.
That being the case, the Tribunal has no jurisdiction to hear the matter as a breach of this tenancy agreement. Conclusion
For the above reasons the landlord’s claim is dismissed. Other matters
I make the observation that the tenancy agreement does not appear to comply with the requirements of the RTA, including that there is no insulation, insurance or healthy homes statements (see section 13A). The RTA deems failure to provide these statements to be an unlawful act. There is no application from the tenants relating to these matters at this time so I do not address these matters further.
The landlord had applied for suppression of their name, however as their claim is not successful their name is not suppressed. On the Tribunal’s own initiative having considered the interests of the parties and the public interest I suppress the names of the tenants, the tenancy address and the name of the previous tenant and reference to the application number of the previous tenant’s order.
As stated above [Tenant 5] is to be forwarded a copy of this decision. 21 March 2025

Tenancy Tribunal case 5163686 — Rent arrears

At a glance

Tenancy Tribunal case 5163686 — Rent arrears

At a glance

Claims & awards

Order

Reasons

Should the Tribunal terminate the tenancy?

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the Tribunal terminate the tenancy?

How much is owed for rent?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions