What was Tenancy Tribunal case 5164992 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 5164992?

Deduction For Failure To Mitigate: $810.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent: $2,862.00 awarded to landlord

What type of tenancy dispute was case 5164992?

The dispute type was not classified.

Where can I read the official tribunal order for case 5164992?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12048068-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5164992 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 5164992?

Deduction For Failure To Mitigate: $810.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent: $2,862.00 awarded to landlord

What type of tenancy dispute was case 5164992?

The dispute type was not classified.

Where can I read the official tribunal order for case 5164992?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12048068-Tribunal_Order_Redacted.pdf.

7 Kohukohunui Lane, Ramarama, Drury 2579 Tenancy Tribunal Case 5164992 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5164992 — net $2,025.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent to 24 March 2025	$2,862.00		Rent to 24 March 2025
Filing fee reimbursement		$27.00	Filing fee reimbursement
Deduction for failure to mitigate		$810.00	Deduction for failure to mitigate
Total award	$2,862.00	$837.00
Net award	$2,025.00
Total payable by Tenant to Landlord	$2,025.00

Claims and awards in Tenancy Tribunal application 5164992 — net $2,025.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent to 24 March 2025	$2,862.00		Rent to 24 March 2025
Filing fee reimbursement		$27.00	Filing fee reimbursement
Deduction for failure to mitigate		$810.00	Deduction for failure to mitigate
Total award	$2,862.00	$837.00
Net award	$2,025.00
Total payable by Tenant to Landlord	$2,025.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s and tenants’ names.
The Bond Centre is to pay the bond of $2,025.00 ([Bond number suppressed]) to [The landlord/s] immediately. The Bond Centre is to pay the bond of $1,215.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing on 24 June 2025.
The tenants applied to the Tribunal on 16 March 2025 for refund of the bond, exemplary damages for late lodgement of the bond, a rent reduction for failure to mitigate and an order reducing the rent to the market rent. The tenants also claimed compensation for failure to consent to assignment. Background
A summary of the background is set out below: • The parties signed a residential tenancy agreement on 8 March 2024 for a fixed term beginning on 23 March 2024 and ending on 24 March 2025. Prior to commencement, it was agreed that the tenancy would start early, on 16 March 2024. The parties did not agree to change the end date of the tenancy. • The weekly rent was $810.00 and a bond of $3,240.00 was paid. The landlord said the bond was paid on 5 March 2024, received in his account on 6 March 2024, and lodged with the Bond Centre on 12 April 2024. • On 6 December 2024 the tenants advised that they were purchasing a home with a settlement date of 31 January 2025. They wanted to find a new tenant to move in prior to that date. The landlord said he was happy to try and find another suitable tenant to take over by 31 January 2025. The landlord also noted that it might take longer than that to find a suitable tenant. • On 7 December 2025, the tenants proposed that the parties agree the last week of the tenancy would be 7 February 2025. The landlord did not reply. • The premises were advertised on [online platform] from 21 or 22 December 2024 (the parties gave slightly different dates). • On 16 January 2025 the landlord provided an update on the marketing. He had advertised at the same weekly rental ($810.00) and had not had any inquiries. The landlord indicated that he would be lowering the asking rent at the weekend. • On 29 January 2025, the tenants again asked the landlord if he would accept their forfeiting the bond in exchange for ending the tenancy on 7 February 2025. The landlord said he did not see a problem using the bond for three weeks rent and keep one week for “wrapping things up” such as water. In a later email that day, the landlord set out calculations of the rent owing to 24 March 2025 and his proposed application of three weeks bond towards the rent. • On 3 February 2025 the tenants advised that they had settled the house purchase. The tenants said they were planning to have their belongings removed by the end of 8 February 2025. They repeated their view that the parties had agreed to start the tenancy a week early, so that it would end on 15 March 2025. The landlord indicated that he was about to drop the asking rent again. • The tenants vacated the premises on 6 February 2025 and informed the landlord on 8 February 2025. • A replacement tenant was found from 19 March 2025 at a weekly rent of $710.00.
The landlord seeks payment of the rent for the period from 23 February to 18 March 2025 in the sum of $2,777.00 and the difference between the rent and the new rent ($100.00) for 6 days from 19 to 24 March 2025 in the sum of $85.00. This would result in a payment from the bond to the landlord of $2,862.00. Relevant Law
Section 49 of the Residential Tenancies Act 1986 (the Act) provides that, where any party breaches any of the provisions of the agreement or of the Act, the other party must take all reasonable steps to limit the damage or loss arising from the breach.
In Huang v Ashworth [2024] NZDC 15726, on appeal from a decision of the Tribunal, the District Court cited British Westinghouse Electric and Manufacturing Co v Underground Electric Railway Co of London [1912] UKHL 617 for the proposition that: The law does not allow [a claimant] to recover damages to compensate him for his loss which would not have been suffered if he had taken reasonable steps to mitigate his loss. Whether a claimant has failed to take reasonable steps to mitigate is a question of fact dependent on the particular circumstances of each case.
Section 43A of the Act provides that a provision in the tenancy agreement that prohibits the tenant from assigning the tenancy is of no effect. In contrast, section 44 permits a provision that prohibits the tenant from subletting or parting with possession of the premises. Analysis Marketing
The tenants made several criticisms of the landlord’s marketing of the premises. They said his decision to repeatedly delist the advertisement from [online platform] meant that the watch list was refreshed, so that potential tenants would have to search for the property again when it was relisted. This reduced interest in the premises.
The tenants also submitted that the market rent for the premises when it was first listed in December 2024 was declining and the landlord should have advertised the premises at a lower rent, rather than decreasing the advertised rent over time.
The landlord said that delisting and then relisting the premises meant that potential tenants with relevant search filter settings would have the premises brought to their attention again on relisting. The landlord explained that he believed it was reasonable to advertise the property at the same rent, to test the market, and then to gradually reduce the rent to meet the market.
The landlord also said that, in his experience, advertising more than 6 weeks in advance can be counterproductive. His standard process was to advertise 6 weeks prior to the intended tenancy. Before the landlord commenced advertising in December 2024, he considered other properties in Pokeno and Karaka as being comparable locations. Some of the premises were above $810.00 per week and some below. The landlord was surprised by the lack of response to the initial advertising but said it was difficult to know what the market is doing until advertising begins.
The landlord said he would list the property for about a week. He would then relist with a new price, and potential tenants with relevant search preferences (for example in this case, for 4 bedrooms) would have the advertisement brought to their attention showing the new price. The landlord said a slump in the market had combined with the holiday period to delay the reletting.
I do not consider that criticism can be made of the method by which the landlord advertised the premises. He was entitled to follow his ordinary practice which had worked in the past. The process of listing for short periods and then relisting does not seem intrinsically less plausible than the tenants’ view that maintaining a watchlist was more important. Both may be viable and appropriate strategies.
I also consider that the landlord was entitled, at least initially, to advertise at the same weekly rent. It would place an additional burden on landlords if they had to carefully research the market before relisting, especially when the need to do so was because the tenants wished to break the fixed term. In any event, the landlord did consider the state of the market and then reacted to it over the course of the marketing.
What is more difficult is whether it was reasonable for the landlord to delay the advertising from 6 December 2024, when he was first informed of the tenant’s intention to end the tenancy early, until 21 or 22 December 2024 when the marketing was commenced (or later, as the Property Value report gives a relisting date of 23 December 2024). The proximity to the holiday period calls into question the efficacy of waiting to commence advertising.
I find that the landlord did not take all reasonable steps to mitigate his loss between early December, when the tenants informed him that they wanted to end the lease, and the end of December, when marketing was commenced, a delay of about two weeks. Marketing should have been started straightaway.
It is not possible to say that, if the marketing had been started immediately, a tenant would have been found earlier, but I do consider that a viable marketing period was lost. For example, in Davies v Clarke [2017] NZDC 21608, the District Court criticised the landlord for not doing more to find replacement tenants, even though there were only 3 months left on the fixed term tenancy.
There was a chance that the property could have been relet earlier. I disallow half the rent for the two-week period of delay to allow for the failure to mitigate, a deduction of $810.00. This attempts to make some allowance for the value of the lost marketing period. Market Rent
The tenants said they were being charged more than the market rent. They provided information from Tenancy Services which showed that the average rent for Ramarama between 1 August 2024 and 31 January 2025 was from $650.00 per week at the lower end to $760.00 per week at the upper end, with a median of $690.00. This was the average across all property types.
There was no information available on the Tenancy Services website for four- bedroom properties. The tenants provided data for three bedrooms. The median rent was $680.00, and the upper quartile was $694.00.
The tenants provided an advert for a four-bedroom property (19 Hillock Rise) in the same sub-division and close to the premises. I understood the advert was dated December 2024. This four-bedroom, two-bathroom property was on the market for $710.00 per week. The tenants said this was evidence that the market rent in December 2024 was below the rent at which the landlord started his advertising campaign.
The landlord provided an advertisement dated August 2024 for a four-bedroom, two-bathroom property in Ramarama (16 Talus Drive) as evidence of the market rent during the tenancy. This property was on the market for $750.00-
00 per week. The landlord obtained comment from a real estate agent to the effect that the premises were considered superior, as they had been used as a show home and had some extra features.
In my view, the evidence does not show that the weekly rental of $810.00 was substantially above the market rent when the tenancy commenced. The rental market then suffered a downturn in late 2024 and early 2025 so that the market rent had likely declined prior to the marketing period. However, the ability of landlords and tenants to increase or decrease the rent when a fixed term tenancy has been entered into is strictly circumscribed (see sections 24(1)(g) and 25(2) of the Act). The market may fluctuate, but the parties remain bound to their agreement.
In this case, the tenants’ application was made outside the time permitted in the legislation and, even if an order reducing the rent to the market rent could be made, at the earliest it would take effect from the date of the application on 16 March 2025 (see section 25(4)).
I find that there is no ability to reduce the rent pursuant to section 25. Surrender of Tenancy
The tenants said that, after they vacated on 6 February 2025, and having notified the landlord and left the keys in the kitchen, the landlord accessed the premises without notice to perform maintenance and perform viewings. The tenants said the landlord trimmed the hedges and carried out a final inspection.
The tenants submitted that these actions indicated the landlord considered the premises vacant. The tenants said they were still being charged rent without clear communication about their obligations.
I have considered whether the tenancy was surrendered by the tenants with the landlord’s consent. There is a surrender when the keys are returned, and the landlord accepts them with the intention of retaking possession, so that both sides intend to end the tenancy. It has been held in the general law of leases that a landlord does not necessarily take possession by trying to re-let, or by entering to do necessary repairs, or even by changing the locks to secure the premises. A surrender is, however, effected from the time the premises are relet (The Laws of New Zealand, Lessor and Lessee, Part XV Determination of Tenancies: Recovery of Possession, paragraph 51 Surrender).
In my view, the evidence does not clearly show that the landlord accepted the return of the keys with intent to take possession. For example, on 8 February 2025, after the tenants had told him they would leave the keys in the kitchen, the landlord stated that the tenancy was ending on 24 March 2025. This does not suggest the landlord now agreed the tenancy had ended.
For completeness, I note that section 66 of the Act (reduction of fixed term) does not apply. This requires an unforeseen change in the tenants’ circumstances. The change in the tenants’ circumstances arose because of their decision to purchase a property. The opportunity to do so may have been unforeseen, but the impact this could have on their tenancy would have been within their reasonable foresight. Indeed, the tenants have not suggested otherwise. Assignment
The impression from the tenants’ evidence was that they did not approach the landlord for permission to assign because the landlord had stated that he would conduct the marketing and vet prospective tenants himself. The tenants believed that they were unable to assign or sublet. In fact, the provision in the tenancy agreement precluding assignment was of no effect pursuant to section 43A of the Act.
There does not appear to be any remedy provided in the Act for precluding assignment contrary to section 43A, other than that the clause is unenforceable. A remedy is available when a tenant makes a written request to an assignment and the landlord fails to respond or unreasonably withholds consent. The tenants made no such request and indicated they did not have a proposed replacement tenant.
Regardless of the provisions of the tenancy agreement, the tenants could have asked the landlord for permission to advertise on Facebook (which they mentioned as an online forum for rental properties, particularly among younger people) but it seems they managed to convince themselves that the landlord would not approve.
While the landlord set out some opinions around his approach to advertising in his email of 6 December 2024 (such as timing, vetting and open homes) he did not rule out alternative strategies. I consider he would have had an obligation to consider any proposals from the tenants. At the hearing, the landlord said the tenants could have asked him to consider assignment, although he noted that any assignment would only have been for a few weeks.
I find that the landlord was not in breach of section 43B of the Act, because the tenants did not seek his approval to an assignment. Bond Lodgement
A landlord must lodge the bond within 23 working days of receipt pursuant to section 19 of the Act.
According to the landlord, the bond was received on 6 March 2024 and lodged on 12 April 2024. The tenants did not contest these dates.
The 23 working day period for lodgement of the bond expired on 10 April 2024, as calculated by the landlord. The bond was therefore lodged 2 working days late.
It is not clear that the tenants even knew about this delay at the time, and I do not see how it could possibly have prejudiced them. I accept this was an oversight on the landlord’s part. I find that there is no justification for exemplary damages. Filing Fee and Suppression
The landlord has largely succeeded in his claim against the bond. Procedurally, the landlord was required to file an application (section 22B(2) of the Act). I treated the application as having been made for the sake of expediency. As a result, the landlord has been saved the cost of the filing fee ($27.00).
The tenants have succeeded in obtaining a refund of part of the bond. I award the filing fee.
Both parties requested suppression. The landlord is probably entitled to suppression. I exercise my discretion to award name suppression to the tenants. There can be no public interest in their conduct. I find that their privacy interest justifies suppression.
The parties’ names are suppressed. I have not suppressed the tenancy address, given its significance to the discussion around market rent.

Tenancy Tribunal case 5164992 — Tenancy dispute at 7 Kohukohunui Lane, Ramarama, Drury 2579

At a glance

Tenancy Tribunal case 5164992 — Tenancy dispute at 7 Kohukohunui Lane, Ramarama, Drury 2579

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