Published tribunal order
Tenancy Tribunal case 5184731 — Tenancy dispute at 1119B Buckland Road, Karapiro, RD 4, Cambridge 3496
Decided 25 Mar 2025 · Published 25 Mar 2025 · Application 5184731
Landlord favoured
- Exemplary damages
- Filing Fee
Order
- The tenancy of Cheynagh Herbert at 1119B Buckland Road, Karapiro, RD 4, Cambridge 3496, is terminated, and possession is granted to Gordham Farms Limited at 11.59 pm on Tuesday, 25 March 2025.
- The Bond Centre is to pay the bond of $27.00 (BN-00041811) to Gordham Farms Limited immediately.
- Cheynagh Herbert must pay Gordham Farms Limited $27.00 immediately, calculated as shown in the table below: DescriptionLandlord Filing fee reimbursement$27.00 Total award$27.00 Bond$2,000.00 Total payable by Tenant to Landlord$1,973.00
Reasons
- Ms. Gordon, the director of the landlord company, attended the hearing via teleconference.
- The tenant, Mr. Herbert did not attend. I called his cell phone number (as provided on the landlord’s application) twice but was unsuccessful in reaching him. I left two voicemail messages. Background of the Application
- Ms. Gordon alleges that Mr. Herbert abandoned the property and owes rent arrears.
- The landlord has applied for termination of the tenancy on grounds of abandonment, rent arrears, and a refund of the bond. Introduction
- According to Ms. Gordon, Mr. Herbert and Ms. D were partners who jointly signed the tenancy agreement. The tenancy was for a fixed-term tenancy for a year from 25 October 2024 to 25 October 2025.
- Although this application names only Mr. Herbert as the tenant, the signed tenancy agreement includes the co-tenant, Ms. D.
- I refer to the co-tenant as "Ms. D" because she was a victim of family violence at the property and is not a party to the present application. Circumstances Leading to the Application
- Based on Ms. Gordon’s evidence, the circumstances of Mr. Herbert’s alleged abandonment are as follows: a. Final Communication: Mr. Herbert last contacted Ms. Gordon via text on 22 February 2025 at about 4:00 AM, confirming a meeting scheduled for 10:00 AM on 23 February 2025 to discuss unresolved property damage and rent arrears. He failed to attend and ceased all further communication (calls, texts, or emails). b. Key Surrender: The co-tenant, Ms. D, served a Notice of Withdrawal from Tenancy on 26 February 2025 (effective 28 February 2025) on family violence grounds under Section 56B of the Residential Tenancies Act (RTA). She retained the sole key until 28 February 2025, when she left it in the property upon vacating. Ms. Gordon confirmed that Mr. Herbert had no means of re-entry afterward, as he lacked a key or vehicle.
Should the tenancy be terminated?
- The Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. See section 61 Residential Tenancies Act 1986. A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.
- Ms. Gordon submitted that Mr. Herbert had not returned to the property since 23 February 2025 and had ceased all contact. Given Ms. D’s formal withdrawal on 28 February 2025, I find this date marks the abandonment, as it was the point when Mr. Herbert’s absence became unequivocal (no key, no communication, and no remaining co-tenant).
- Accordingly, I conclude that the landlord became aware (or ought to have been aware) of the abandonment on 28 February 2025.
- Since the premises have been abandoned and rent remains unpaid, the tenancy is terminated immediately.
How much does the tenant owe?
- Ms. Gordon provided rent records showing $2,500 in arrears as of 27 February 2025. This amount is jointly owed, as Ms. D had not yet withdrawn from the tenancy.
- Under Section 61(3)(a) of the RTA, Mr. Herbert is liable for three weeks of rent (28 February – 20 March 2025) after he abandoned the property on 28 February 2025.
- However, because Ms. D withdrew from the tenancy on 28 February 2025, under Sections 56B(3)(d) and (5) of the RTA, Mr. Herbert is liable for half the rent ($250/week) for two weeks (28 February – 13 March 2025).
- Summary of Liability: a. Joint Liability (Mr. Herbert & Ms. D): $2,500 (unpaid rent up to 27 February 2025). b. Mr Herbert was liable for unpaid rent after the abandonment of $1,000. This $1,000 consists of: i. $500: ($250/week for reduced rent as the remaining tenant, 28 February – 13 March 2025). ii. $500 per week from 14 March to 21 March 2025.
- This calculation may not be easy to understand because Ms. D is not a party to this application.
- Ms. Gordon indicated she intends to file a new application seeking compensation for damages caused during the tenancy, for which both tenants are liable. Bond Refund Considerations
- Initially, I considered releasing the bond to Ms. Gordon. However, upon further review, I am concerned that doing so may be unfair to Mr. Herbert, as Ms. D (who is jointly liable for rent arrears up to 27 February 2025) is not a party to this proceeding.
- Therefore, I now consider the bond (except the filing fee) should remain with the Bond Centre until Ms. Gordon’s new compensation application is filed and heard.
- I urge Ms. Gordon to include Ms. D in any future compensation claim, as Ms. D is jointly liable for the damage and rent prior to her withdrawal from the tenancy on 28 February 2025. Did Mr. Herbert abandon the premises without reasonable excuse?
- A tenancy is abandoned if a tenant leaves without reasonable excuse, fails to notify the landlord, and shows no intent to return or meet obligations.
- If a tenant abandons the premises while rent is in arrears, this constitutes an unlawful act, and exemplary damages (up to $1,500) may apply under Section 61(5) and Schedule 1A of the RTA.
- Based on the evidence, I am not satisfied that Mr. Herbert abandoned the property without reasonable excuse. My reasons are: a. On 22 February 2025, Mr. Herbert confirmed a meeting with Ms. Gordon to address issues regarding property damage and overdue rent. b. Mr Herbert’s absence on 23 February 2025 remains unexplained—it’s possible that police intervention prevented his return. Another possibility is that Mr Herbert chose to abandon the property. I have no evidence pointing in either direction. c. On 28 February 2025, Ms. D surrendered the key, leaving Mr. Herbert unable to re-enter. d. While overdue rent and lack of communication may suggest abandonment, family violence may have hindered Mr Herbert’s return. e. Without access to the key (held by Ms. D), Mr. Herbert could not re-enter the property.
- There is insufficient evidence to determine whether Mr. Herbert abandoned the property without reasonable excuse.
- Accordingly, I dismiss the allegation that Mr Herbert abandoned the property without reasonable excuse. Filing fee
- Because Gordham Farms Limited has wholly succeeded with the claim I must reimburse the filing fee.