Published tribunal order
Tenancy Tribunal case 5190114 — Cleanliness at Unit/Flat 4, 57 Aberdeen Road, Campbells Bay, Auckland
Decided 15 Jul 2025 · Published 15 Jul 2025 · Application 5190114
- Cleanliness
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 Blair Watson and Louise Watson $0.00 from the bond, as follows:
- The Bond Centre is to pay the bond of $2,880.00 ([Bond number suppressed]) immediately apportioned as follows: Blair Watson and Louise Watson: $1,339.00 [The tenant/s]: $1,541.00
Reasons
- Both parties attended the hearing which was scheduled by videoconference. The landlords were represented by Mr Watson who appeared by phone.
- This was a rehearing of the tenant’s application and a hearing of the landlords’ cross application as per the Tribunal’s Order dated 12 April 2025 Background
- The parties entered into a fixed term tenancy for a term from 16 June 2024 to 14 June 2025.
- On 3 March 2025 the tenant advised the landlord, “I am writing to formally inform you that due to an unexpected job opportunity in Australia that I simply couldn't turn down, Jenna and I will need to break our lease a few months early.... our lease was originally set for renewal in June but we will need to vacate by the end of March. We understand that breaking the lease early may come with obligations, and we are happy to discuss any necessary steps, including assisting with finding a new tenant if required.”
- The landlords responded, “Unfortunately ending your fixed term tenancy is a problem for us. We have sold our property in Milford and have based settlement on your fixed term tenancy ending in June. In fairness we had planned to give you guys 90 days’ notice to let you know that we would not be renewing the fixed term contract again as we plan to move into Aberdeen Rd ourselves in June. Because of this, reletting is not an option .”
- The communication chain between the parties has been put into evidence and does not need to be reproduced here. One significant component was a request made by the tenants for consent to assign the remaining lease term. It was made on 18 March 2025 in the following terms, “Please find attached our request for assignment. We have found a young couple who align with our required dates although they have requested a rent payment at $600.00 per week instead of $720.00 per week. This would leave a balance of $1,217.14 on the difference over the remaining period which we would be happy to split.”
- The tenants attached a communication from the prospective assignees giving their names and contact details, an outline of their professional house sitting experience and links to references. They say they are a couple with a nearly 2 year old child with a new baby expected on 18 April.
- The landlords’ response to the request was, “The assignment you have now sent through does not meet the conditions of your current tenancy agreement. You said it was for a young couple. You failed to mention that they have a child. Maximum occupancy for the property is for two people as stated in the contract. Due to our huge financial commitment with Aberdeen Rd. we cannot accept rent lower than $720 per week.”
- The tenant vacated the property at the end of March. Rent has been paid to 12 April 2025.
- The landlords were able to negotiate in earlier settlement for the sale of their flood damaged property and moved into these premises around 12 May 2025. The Claims
- The tenant filed his application on 7 March 2025 seeking an order that the fixed term tenancy be ended early and that he be compensated for the landlord's refusal to consent to assignment of the tenancy.
- The landlords’ cross application was filed on 27 April 2025. It seeks an order for unpaid rent from 13 April 2025 to 12 May 2025, totalling $3,086.00.
- The landlords also seek compensation for the cost of a Trade Me listing.
Should an order be made ending the fixed term early?
- Section 66 RTA allows the Tribunal to order early termination of a fixed term tenancy, “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.”
- In this case, hardship would be caused to the tenant by having to continue paying rent from 13 April 2025 to 14 June 2025 when he is not living in the property and he and his partner are establishing themselves in Australia. The evidence provided does not enable an assessment of the severity of that hardship.
- The landlords are also in a difficult financial situation having sustained major losses from flood damage to their other home, which is being acquired by the Council.
- The evidence available does not establish the grounds for making an order terminating the fixed term tenancy early under s.66 RTA.
Has there been a failure to mitigate?
- Section 49 RTA provides that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
- Generally, what that obligation requires, where a tenant wishes to end a fixed term agreement early, is that a landlord must take reasonable steps to find a replacement tenant.
- Because the landlords were moving into the property themselves at the end of the fixed term, I accept it was not reasonable to expect a new tenancy be established in the meantime. I accept their evidence that they took steps to see if a new tenancy could be found for that short term.
- The landlords also offered to “split” the rent for the remainder of the fixed term with tenant. They went to significant effort to renegotiate an earlier date for settlement of their sale, reducing the period for which rent could be claimed from the tenant.
- Those are reasonable mitigation steps and I do not find it proved that the landlords breached their obligations under s. 49 RTA.
Did the landlords unreasonably refuse consent to assignment of the tenancy?
- Under s.43B(1) RTA, “A tenant may, at any time during the tenancy, assign the tenancy—(a) with the prior written consent of the landlord; and (b) in accordance with any reasonable conditions attached to that consent by the landlord.” Subsection (6) requires that, “The landlord must not—(a) withhold consent unreasonably; or (b) attach any unreasonable conditions to the consent.”
- The tenant had found assignees who were willing to take the remainder of the tenancy term. He had a right to assign the remaining term to them with the landlord’s consent, which the landlords could not unreasonably withhold.
- The tenant took all available steps to properly seek the landlords’ consent. All details the landlords could have expected about the proposed assignees were provided along with means of contacting them. As noted, information provided by the proposed assignees, with links to references, was provided.
- The assignees appear to have been suitable, as professional house sitters with references available.
- The landlord did not make contact with the proposed assignees, check references or take any other steps to assess their suitability. They rejected the proposed assignment on the basis that the agreement provided for a maximum occupancy of two, whereas the proposed assignees were a couple with a very young child (the expected baby should not have been a consideration).
- For the landlords to reasonably withhold consent to assignment of the tenancy, it would need to be on substantive grounds. It is difficult to see what substantive difference it would make to the landlords’ legitimate interests, that the proposed assignees had a child close to 2 years’ old.
- The landlords say these are small premises of 60m 2 with a shared toilet and bathroom. A child of that age would not be expected to have needs or to create risks that the landlords should reasonably have been concerned about. He landlord had the opportunity, through reference checks and/or discussion with the proposed assignees, to satisfy themselves that their having a child had not created issues for any previous landlords/ owners.
- The landlords were entitled to expect that they would be no worse off financially by consenting to an assignment. The tenant had offered to make up 50% of the difference between the rent payable by the new tenants and the rent payable under the agreement. It would have been reasonable for the landlords to add a condition that the tenant would top up any rent shortfall.
- A bond remains held which is more than twice the “top up” amount.
- Looking at the evidence as a whole, it does seem that for reasons that were thought to be helpful to the tenant as well as themselves, the landlords had decided that the best solution was to bring forward the date for them to complete the sale of their other property and move into these premises. In fixing on that plan, they effectively discounted the possibility of accepting an assignment of the remaining term
- I find that the tenant’s right of assignment under s.43B RTA was breached by the landlords withholding consent unreasonably.
- The landlords’ breach means that they should not be able to claim from the tenant, loss of rent that resulted from their breach.
- If the assignment had been consented to, the tenant would have been required to pay the landlords the “top up” rent of $120 per week for the 9 weeks from 12 April to 14 June. That should be paid to the landlords from the bond.
- Otherwise, the landlords’ claim for lost rent is dismissed.
- The landlords have paid for advertising of the property on Trade Me. That is a loss caused by the tenant’s wish to break the fixed term and should be compensated.
- In the circumstances no order is made in respect of the filing fee.