What was Tenancy Tribunal case 5191940 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5191940?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5191940?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 5191940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12130923-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5191940 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 5191940?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5191940?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 5191940?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12130923-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5191940 — 14-day notice

Order

The application is dismissed.
The name and identifying details of the Landlord are suppressed.

Reasons

Both parties attended the hearing.
Jessica Anna Milne Nielsen, Georgia Rose Peterson and Ben Todd Murphyclaims: a. They seek to recover the rent they paid between 13 January 2025 (when they vacated the premises) and 25 February 2025 (when the fixed term tenancy ended). b. They alleged that the Landlord has breached section 44A of the Residential Tenancies Act 1986 (the RTA) and committed an unlawful act by issuing an invoice for expenses incurred on the termination of a fixed term tenancy where that invoice was not itemised. Relevant background
On 26 February 2024, the Tenants entered into a one-year fixed term tenancy agreement to rent the premises with Bayleys Property Management Wanaka. That fixed term agreement expired on 25 February 2025. The weekly rent was $800.
During the term, [the Landlord] (the Landlord) took over the property management of the premises. On 3 December 2025, the Tenants advised the Landlord that they wanted to terminate the tenancy and vacate the premises on 12 January 2025.
On 10 December 2024, the Landlord replied, stating: Hi Jessica, Ben & Georgia Thank you for letting us know you wish to break your fixed tenancy. A few things to note : The owner does not have to agree to release you. You are responsible for paying the rent up until the day a new tenant takes over or the fixed term ends, whichever happens first. We require 2 working days between tenancies to do your moving out inspection and the new tenants' moving in report. Tenancies need to start on a weekday. You will be required to pay for the reasonable costs incurred by the owner such as administration, advertising and conducting a property inspection (average $800.00 + GST). This is payable before the property is advertised / new applications will be processed. An invoice will be emailed to you. You may like to do your own advertising as well. We advertise on the Home & Co website, Realestate.co.nz and in the Messenger. If suitable we can put up one of our To Rent signs. Please complete the attached form to confirm the date you want to vacate and to agree to the terms. We will advertise as soon as we have this and your break lease fee.
The attached form was a “Notice to [the Landlord] to Break Fixed Term Tenancy” (the Break Notice”). The Break Notice appears to be the Landlord’s standard form document sent to tenants who seek to break a fixed term tenancy. Amongst other things, that document states: A Break Lease Fee is payable to cover the owner’s reasonable costs in finding a new tenant. That is payable before the property is advertised / new applications will be processed. An invoice will be emailed to you.
The Landlord also sent an invoice for $920 dated 10 December 2024. That invoice was titled “Lease break/change”. The invoice was not itemised and simply says: Lease break fee$920
The Tenants asked the Landlord to provide an itemised invoice. On 10 December, the Landlord responded saying that the invoice was an estimate only and it could not provide an itemised invoice until the property had been rented.
The Tenants did not pay the invoiced amount. They also amended the Break Notice by removing the clause quoted at paragraph [6] above. The Tenants then signed the amended Break Notice and returned it to the Landlord on 11 December 2024.
At the same time, the Tenants advised the Landlord: We can not agree to your clause 'A break lease fee is payable before the property is advertised/ new applications will be processed. An invoice will be emailed to you.' This is because legally under the Residential Tenancy Act 1986, Section 44A (1) we do not have to pay the reasonable incurred expenses until the termination of our tenancy, at which point the landlord is entitled to recover from the outgoing tenant (Us Jess, Ben and Georgia) any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination. At which point (2) the landlord who seeks to recover expenses from a tenant in accordance with subsection (1) must provide an itemised account of the expenses to the tenant.
The Landlord says that it did not then seek to recover any lease break fee and immediately advertised the premises for rent. The Landlord also erected a For Rent sign outside the premises.
On 12 December 2024, the Landlord also emailed the Tenants. That email states: This is to acknowledge that you will be vacating the property on 12 January 2025. If you have not yet received confirmation that you have been released then rent owing to the end of your fixed tenancy is $8228.57. Once we have a signed agreement from the new tenant we will let you know the final amount due. A final inspection has been booked for Monday 13th January. You do not have to be present at the inspection but please let us know if you intend to be there so we can confirm the time. You have a bond of $3200.00 and this can be refunded to your bank account at the end of the tenancy providing all rent is paid, keys returned by close of business on 25/02/2025 and the property is clean and tidy at the final inspection. Please fill in your bank account details and sign the bond refund form. Either leave on the kitchen bench at the final inspection or give it to me with your keys. Remember to cancel your Automatic Payment and re-direct your mail. Make a note to contact your power provider with your final reading on the day that you vacate. We have attached a Fast Connect form - they will transfer your power / gas / internet for free and always have great discounts on offer. Please book commercial carpet cleaning if the carpets are soiled or if it was a condition of your tenancy agreement. We have included a handy guide of things to do.
The Landlord did not find a replacement tenant before the Tenants vacated the premises on 12 January 2025. The Tenants had advertised the premises themselves on Facebook Marketplace. They say that they then directed prospective tenants to the Landlord. The Landlord says that it assessed those prospective tenants who contacted them. It says that none of the prospective tenants was suitable. The property manager who appeared at the hearing advised that one of the potential tenants was unsuitable as they were looking for a furnished property. The owner of the property declined two other potential tenants, without providing reasons.
Before leaving, the Tenants cleaned the premises. The Tenants then returned all keys to the Landlord. The Landlord then conducted what it called a “final inspection on 13 January. The Landlord considered that further cleaning was required. The Tenants then arranged to collect the keys from the Landlord and performed that cleaning. The Tenants then returned the keys to the Landlord.
The Tenants then emailed the Landlord attempting to arrange a refund of the bond. In an email dated 17 January 2025, the Landlord responded, saying: Regarding the bond, funds have not been agreed as yet as we are still doing viewings to find new tenants and that will all be part of the break lease fee. Rent is still owing each week until a new tenancy can start. I am working hard to get the property rented as soon as possible but in the mean time you are all liable to keep paying.
Despite making efforts to do so, the Landlord did not then find a replacement tenant until 4 February 2025. The Landlord has provided evidence to show that the new tenants signed a tenancy agreement on 4 February 2025. That tenancy commenced in late February 2025, after the end of the Tenants’ fixed term.
The Tenants continued to pay rent until the expiry of the fixed term. Can the Tenants recover the rent paid between 13 January and 25 February 2025?
To determine whether the Tenants may recover the rent paid between 13 January and 25 February 2025, I must answer two questions: a. Was the tenancy terminated on 12 January 2025? b. If not, did the Landlord make reasonable efforts to relet the premises?

Was the tenancy terminated on 12 January 2025?

The Tenants says that they should not be liable for any rent after 12 January 2025 because that is when the tenancy came to an end. The Tenants say they performed a final clean, the Landlord performed a final inspection, and they returned the keys, thus handing possession to the Landlord. They say that the Landlord agreed to this arrangement.
Although not expressed as such, I understood the Tenants to rely on section 50(1)(d) of the RTA, when claiming that the tenancy was terminated on 12 January 2025. Section 50(1)(d) states: 50Circumstances in which tenancies are terminated (1)Subject in the case of a subtenancy to section 57, no tenancy to which this Act applies shall terminate or be terminated otherwise than as follows: ... (d)where the tenant surrenders the tenancy, or delivers up vacant possession of the premises, to the landlord with the landlord’s written consent:
I agree that the Tenants delivered up vacant possession of the premises and/or surrendered the tenancy on 12 January 2025. They gave the premises to the Landlord clear of occupants and clear of their objects. They also has handed back the keys. However, surrendering the premises or delivering vacant possession is not enough to terminate the tenancy under s 50(1)(d). The landlord must also provide written consent.
The Landlord did not consent, in writing or otherwise, to the early termination of the tenancy. After first being told of the Tenants’ intention to vacate the premises, the Landlord consistently reiterated to the Tenants that the Landlord did not agree to the early end of the tenancy and that the Tenants would remain liable for the rent until the end of the term. See, for example, the email of 10 December 2024 as set out at paragraph [5] above. The Landlord confirmed that position again on 17 January 2025, as set out in the email quoted at paragraph [15] above.
Neither can I infer agreement to early termination of the tenancy from the Landlord’s conduct. The Landlord did retake possession of the premises, but only because the Tenants had vacated and had no intention to return. The Landlord’s actions were reasonable in those circumstances and do not amount to an acceptance of the early termination of the tenancy, particularly where it continued to maintain that the Tenants were required to continue to pay the rent.
I therefore find that the tenancy was not terminated early by consent, and the Tenants remained liable for the rent until the earlier of the end of the fixed term or the Landlord found a replacement tenant.

Did the Landlord make reasonable efforts to relet the premises?

The Tenants say that the Landlord acted in bad faith and failed to take adequate steps to mitigate its loss and find a replacement tenant. They say the Landlord did not sign and return the Break Notice sent to it on 11 December 2024. The Tenants suspected that the Landlord then failed to take adequate steps because they had declined to pay the lease break fee.
The evidence does not support that submission. I find that the Landlord’s conduct in reletting the premises was not influenced by the Tenant’s refusal to pay the lease break fee. Indeed, the evidence shows that the Landlords accepted that the Tenants’ position was correct, so the Landlords did not pursue the lease break fee.
The evidence also shows that, once the Tenants advised it of their intention to leave, the Landlord advertised the premises for rent, including by erecting a sign outside the premises and advertising online. The Landlord also considered the prospective tenants presented to them by the Tenants and made the premises available for inspection by prospective tenants.
The Tenants also submitted that the average time for renting a house in Wanaka at that time was about 14 days. They say that this demonstrated that the Landlord failed to take reasonable efforts, because it took much longer to find a replacement tenant.
Again, the evidence suggests otherwise. The Landlord provided evidence to show that the average time to rent premises in Wanaka between 1 December 2024 and 3 February 2025 was about 44 days. It took 56 days from the date the Landlord started advertising these premises (10 December 2024) until a new tenancy agreement was signed with the replacement tenant (4 February 2025). Although longer than average, that timeframe is not evidence in itself that the Landlord failed to take reasonable steps to find a replacement tenant. In that regard, I note that it was about three and a half weeks between the date the Tenants vacated the premises and the date the new tenancy agreement was signed.
The Tenants also submitted that the Landlord failed to reasonably consider their request to assign the tenancy. Under section 43B of the RTA, a Landlord must consider such a request and cannot unreasonably withhold consent to a proposed assignment.
The Tenants did not ask formally ask for an assignment of the tenancy until 4 February 2025. By then, the Landlord had already signed a tenancy agreement with the replacement tenant, so the Landlord was unable to agree to assign the tenancy to a different person.
I therefore find that the Landlord made reasonable efforts to relet the premises, did not unreasonably refuse to consider an assignment of the tenancy and took reasonable steps to mitigate the impact of the Tenants’ early departure from the premises.
In reaching these conclusions, I do have sympathy for the Tenants’ position. I heard evidence from the Tenants that their personal circumstances had changed to the extent that they could no longer afford to remain at the premises. They have paid more than $5,000 in rent for premises they were not living in and could not afford. As they acknowledged during the hearing, with hindsight, they could have applied to the Tribunal seeking to reduce the fixed term tenancy due to severe hardship. 1 They did not do that, so I have had to apply the usual rules that apply to the early end of a fixed term tenancy.
Having done that, I have concluded that the Landlord did not consent to early termination of the tenancy and has otherwise acted reasonably, meaning the Tenants were liable for the rent for the full term of the tenancy or until a replacement tenant was found. The Tenants’ application to recover the rent they paid is therefore dismissed.

Has the Landlord breached section 44A of the RTA?

Section 44A of the RTA states: 44A Recovery of expenses incurred by landlord (1) A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination. (2)A landlord who seeks to recover expenses from a tenant in accordance with subsection (1) must first provide an itemised account of the expenses to the tenant. (3) A landlord who takes any step to recover expenses referred to in subsection (1) without providing an itemised account of the expenses to the tenant— (a)commits an unlawful act; and (b) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.
The Tenants say that the Landlord breached s 44A(2) by issuing the invoice for the lease break fee, because that invoice was not itemised and the expenses had not been incurred.
I find that the Landlord has not breached s 44A(2) of the RTA for two reasons: a. First, I am not satisfied that section 44A applies. Section 44A is triggered by the landlord consenting to an assignment under section 43B, a subletting or parting of possession under section 44 or termination of the tenancy under section 50(1)(d). This tenancy was not assigned, sublet or terminated by consent. Section 44A does not therefore apply. b. Second, if section 44A did apply, although the invoice issued by the Landlord was not an itemised invoice, the Landlord then took no steps to recover the expenses referred to in the invoice. The Tenants advised that they would not 1 Under section 66 of the Residential Tenancies Act 1986, a party to a fixed term tenancy may apply to the Tribunal to have the term reduced due to an unforeseen change in circumstances that caused severe hardship. pay the invoice and amended the Break Notice to remove reference to the lease break fee. The Landlord accepted that, proceeded to advertise the property for rent and did not pursue any amount relating to the expense of reletting the premises.
For completeness, I note that even if I am wrong as to whether the issuance of the invoice was an unlawful act, I note that, given the Landlord took no steps to attempt to recover those expenses after the Tenants raised their concerns and given the Landlord’s conduct in immediately advertising and attempting to relet the premises, I would not have awarded exemplary damages as claimed by the Tenants. Any breach would have been technical only, and of no harm to the Tenants.
The Tenants’ application for a remedy under section 44A is therefore dismissed. Name suppression
The Tenants sought name suppression. They have not succeeded in their claim, so there is no presumption of suppression. Neither is there anything exceptional about their personal circumstances or any particular public interest sufficient to justify suppression. The Landlord is entitled to name suppression, having successfully defended the claim.

Tenancy Tribunal case 5191940 — 14-day notice

At a glance

Tenancy Tribunal case 5191940 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Was the tenancy terminated on 12 January 2025?

Did the Landlord make reasonable efforts to relet the premises?

Has the Landlord breached section 44A of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Was the tenancy terminated on 12 January 2025?

Did the Landlord make reasonable efforts to relet the premises?

Has the Landlord breached section 44A of the RTA?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions