What was Tenancy Tribunal case 5192674 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 5192674?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5192674?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 5192674?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11688486-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5192674 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 5192674?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5192674?

The primary dispute was Mould & damp.

Where can I read the official tribunal order for case 5192674?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11688486-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5192674 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and her identifying details.
The application by Graham Mark Shieff to reduce the fixed term tenancy is dismissed.

Reasons

Both parties attended the hearing.
The Landlord has applied for reduction of the one year fixed-term tenancy, currently due to end on 24 June 2025.
The background is that on 30 August 2024, the landlord advised the tenant that he needed to sell the property as he was moving to Australia. The tenant has two children who live with her full time and additional children who come at the weekends. This was a stressful time for her as she then helped out with open homes and presenting the property for sale. She felt this was difficult on her mental health.
The landlord secured a sale of the property, however, he was then to encounter some health challenges, resulting in two surgeries. He had to pull out of the sale. He has an appointment with his surgeon in a few weeks and may be advised then that he needs further surgery.
The landlord cannot now move to Australia and now needs to move back into the premises, which were once his own residential premises. He claims that he is currently living in a garage and it is not suitable for his medical needs, although he provided no corroborating evidence of his current living situation. He made reference to a family trust owning other property, but no details were provided about that property or whether he is a beneficiary of it.
The tenant has been looking for suitable accommodation elsewhere, because she wants to cooperate with the landlord, but has not found anywhere yet. She had of course expected to remain living in the premises until 24 June 2025.
The parties did attempt a settlement discussion during the hearing but this did not lead to a settlement and the tenant requires a ruling from the Tribunal. There was of course no requirement on her to settle.

What must the landlord prove to reduce the fixed term?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. The landlord will need to establish that: a. there has been a change in their circumstances; b. the change was unforeseen; c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced; and d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced. 1
“Unforeseen” means unexpected or without warning. An unforeseen change in circumstances has in previous cases included circumstances such as an 1 See section 66(1) Residential Tenancies Act 1986. unexpected transfer of the tenant’s employment to another city, relocation to another city for cancer treatment and services being cut to the property due to an earthquake and substantial damage to the property. 2
In Bond v Tang Invercargill TT 09/583/IN, 25 August 2009, the Tribunal concluded that: The term ‘unforeseen’ is a legal term defined by reference to the reverse (‘foreseeability’) in cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts there is a body of case law which has established that: a. Foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; b. An outcome is foreseeable in legal terms if it is ‘liable to result’, ‘not unlikely’, ‘quite likely’, a ‘real danger’, a ‘serious possibility’, or a ‘real risk’. c. The term ‘unforeseen’ has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as ‘unexpected’ and ‘without warning’. In a legal context, it must also be taken as a reverse of what is ‘foreseen’, thus being ‘not liable to result’, ‘unlikely’, ‘not a real danger’, ‘not a serious possibility’, or ‘not a real risk’.
The use of the word ‘unforeseen’ in s. 66 RTA provides for a subjective test. The question of objective reasonableness is however relevant in determining whether the change was genuinely unforeseen by the applicant.
Changes in the condition of the property are not an unforeseen change in a tenant’s circumstances, such as mould, flooding, sewage problems or the need for ordinary repairs and maintenance, or minor repairs. 3
In regard to the burden of proof, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and reports and photographs can be an important part of discharging this burden. 2 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [13] 3 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [14] and Davies v Clarke [2017] NZDC 21608 at [15]
Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal. As noted in Kaipo v Clarke & McCarthy, in practical terms this means that: 4 ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Has there been an unforeseen change in the landlord’s circumstances?
I am satisfied there has been an unforeseen change in the Landlord’s circumstances. His medical needs have changed unexpectedly since the commencement of the tenancy and he provided evidence corroborating his medical conditions. Will the unforeseen change will result in severe hardship to the landlord if the tenancy is not reduced
It was on this aspect that I have some difficulty. The word “severe” as it appears in the legislation connotes a level of extremity when applied to the word “hardship”. The point is that it is not mere hardship but severe hardship that must be proven.
The landlord says he is living in a garage, and that this is not suitable for his medical needs, however, the medical evidence he provided did not comment on his living conditions. He has yet to have the appointment that may or may not lead to further surgery.
I am not satisfied that the landlord has proven there will be severe hardship if the tenancy is not reduced. Balancing the hardships
If I am wrong in my finding that the landlord has not proven severe hardship, I turn to consider where his hardship is outweighed by the tenant’s hardship.
This is a difficult case and the weighing up exercise involved in balancing the hardships that each could suffer is not an easy one.
I consider the hardships equally matched. The tenant has children to manage in finding alternative accommodation. She signed up for a fixed term and has 4 Kaipo v Clarke & McCarthy DC Waitakere 233/02, 12 April 2002, at [7]. cooperated with the landlord throughout, starting from when he wanted to sell the property only two months after the tenancy commenced.
She made the premises available for open homes at this time and found this a stressful time.
Both parties are suffering hardship whether the fixed term is reduced or not. They are equally balanced and as such, I am not satisfied that the landlord’s hardship outweighs that of the tenant.
The application is dismissed.
The landlord is free to make a further application if the circumstance of his health change.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and her identifying details.
The application by Graham Mark Shieff to reduce the fixed term tenancy is dismissed.

Reasons

Both parties attended the hearing.
The Landlord has applied for reduction of the one year fixed-term tenancy, currently due to end on 24 June 2025.
The background is that on 30 August 2024, the landlord advised the tenant that he needed to sell the property as he was moving to Australia. The tenant has two children who live with her full time and additional children who come at the weekends. This was a stressful time for her as she then helped out with open homes and presenting the property for sale. She felt this was difficult on her mental health.
The landlord secured a sale of the property, however, he was then to encounter some health challenges, resulting in two surgeries. He had to pull out of the sale. He has an appointment with his surgeon in a few weeks and may be advised then that he needs further surgery.
The landlord cannot now move to Australia and now needs to move back into the premises, which were once his own residential premises. He claims that he is currently living in a garage and it is not suitable for his medical needs, although he provided no corroborating evidence of his current living situation. He made reference to a family trust owning other property, but no details were provided about that property or whether he is a beneficiary of it.
The tenant has been looking for suitable accommodation elsewhere, because she wants to cooperate with the landlord, but has not found anywhere yet. She had of course expected to remain living in the premises until 24 June 2025.
The parties did attempt a settlement discussion during the hearing but this did not lead to a settlement and the tenant requires a ruling from the Tribunal. There was of course no requirement on her to settle.

What must the landlord prove to reduce the fixed term?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. The landlord will need to establish that: a. there has been a change in their circumstances; b. the change was unforeseen; c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced; and d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced. 1
“Unforeseen” means unexpected or without warning. An unforeseen change in circumstances has in previous cases included circumstances such as an 1 See section 66(1) Residential Tenancies Act 1986. unexpected transfer of the tenant’s employment to another city, relocation to another city for cancer treatment and services being cut to the property due to an earthquake and substantial damage to the property. 2
In Bond v Tang Invercargill TT 09/583/IN, 25 August 2009, the Tribunal concluded that: The term ‘unforeseen’ is a legal term defined by reference to the reverse (‘foreseeability’) in cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts there is a body of case law which has established that: a. Foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; b. An outcome is foreseeable in legal terms if it is ‘liable to result’, ‘not unlikely’, ‘quite likely’, a ‘real danger’, a ‘serious possibility’, or a ‘real risk’. c. The term ‘unforeseen’ has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as ‘unexpected’ and ‘without warning’. In a legal context, it must also be taken as a reverse of what is ‘foreseen’, thus being ‘not liable to result’, ‘unlikely’, ‘not a real danger’, ‘not a serious possibility’, or ‘not a real risk’.
The use of the word ‘unforeseen’ in s. 66 RTA provides for a subjective test. The question of objective reasonableness is however relevant in determining whether the change was genuinely unforeseen by the applicant.
Changes in the condition of the property are not an unforeseen change in a tenant’s circumstances, such as mould, flooding, sewage problems or the need for ordinary repairs and maintenance, or minor repairs. 3
In regard to the burden of proof, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. They must establish that what they are claiming is more probable than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and reports and photographs can be an important part of discharging this burden. 2 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [13] 3 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [14] and Davies v Clarke [2017] NZDC 21608 at [15]
Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal. As noted in Kaipo v Clarke & McCarthy, in practical terms this means that: 4 ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Has there been an unforeseen change in the landlord’s circumstances?
I am satisfied there has been an unforeseen change in the Landlord’s circumstances. His medical needs have changed unexpectedly since the commencement of the tenancy and he provided evidence corroborating his medical conditions. Will the unforeseen change will result in severe hardship to the landlord if the tenancy is not reduced
It was on this aspect that I have some difficulty. The word “severe” as it appears in the legislation connotes a level of extremity when applied to the word “hardship”. The point is that it is not mere hardship but severe hardship that must be proven.
The landlord says he is living in a garage, and that this is not suitable for his medical needs, however, the medical evidence he provided did not comment on his living conditions. He has yet to have the appointment that may or may not lead to further surgery.
I am not satisfied that the landlord has proven there will be severe hardship if the tenancy is not reduced. Balancing the hardships
If I am wrong in my finding that the landlord has not proven severe hardship, I turn to consider where his hardship is outweighed by the tenant’s hardship.
This is a difficult case and the weighing up exercise involved in balancing the hardships that each could suffer is not an easy one.
I consider the hardships equally matched. The tenant has children to manage in finding alternative accommodation. She signed up for a fixed term and has 4 Kaipo v Clarke & McCarthy DC Waitakere 233/02, 12 April 2002, at [7]. cooperated with the landlord throughout, starting from when he wanted to sell the property only two months after the tenancy commenced.
She made the premises available for open homes at this time and found this a stressful time.
Both parties are suffering hardship whether the fixed term is reduced or not. They are equally balanced and as such, I am not satisfied that the landlord’s hardship outweighs that of the tenant.
The application is dismissed.
The landlord is free to make a further application if the circumstance of his health change.

Tenancy Tribunal case 5192674 — Mould & damp

At a glance

Tenancy Tribunal case 5192674 — Mould & damp

At a glance

Claims & awards

Order

Reasons

What must the landlord prove to reduce the fixed term?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What must the landlord prove to reduce the fixed term?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions