Published tribunal order
Tenancy Tribunal case 5220593 — Lost Rent at 105 Limestone Drive, Hobsonville, Auckland 0616
Decided 3 Jun 2025 · Published 3 Jun 2025 · Application 5220593
- Lost Rent
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the Tenant and Landlord names and identifying details.
- The term of the fixed-term tenancy of [The tenant/s] at 105 Limestone Drive, Hobsonville, Auckland 0616 is reduced and ends at 11:59pm on 21 April 2025.
- [The tenant/s] must pay [The landlord/s] $3,601.69 immediately, calculated as shown in the table below:
Reasons
- Both parties attended the video hearing on 30 April 2025 (DO and KS for tenant, and CM for landlord).
- The tenant has applied for reduction of the fixed term of the tenancy which was intended to end on 11 July 2025. The law that applies
- A tenancy for a fixed term cannot be ended early unless both parties agree, or the Tribunal makes an order allowing this.
- In other words, a fixed term tenancy agreement is a binding contract which cannot be ended by giving notice to the other party.
- The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986. Background
- The landlord and tenant agreed to a one-year fixed term starting on 12 July 2024 and ending on 11 July 2025.
- The tenant says there were no issues with the tenancy until late January 2025 when large scale earthmoving work began on an area of land nearby.
- The previously quiet street became a thoroughfare for large trucks and earthmoving machinery and there was significant noise and vibration from ongoing work.
- In late March 2025, the tenant approached the landlord to seek consent to end the tenancy early as his partner was being medically affected by the vibration and noise.
- The landlord and tenant were unable to agree on terms for an early termination.
- On 1 April 2025, the tenant advised the landlord that he had applied to the Tribunal for early release from the tenancy on the grounds of severe hardship.
- He also advised that he and his family had decided to move out and that their last day at the property would be 21 April 2025. He agreed to pay reasonable reletting costs of around $600 +gst. Has there been an unforeseen change in the tenant’s circumstances?
- I am satisfied that there has been an unforeseen change in the tenant's circumstances:- a. When the one-year fixed term contract was entered into the premises were in an area of new townhouses one block away from a large area of undeveloped and vacant land. The street was unfinished and ended at the vacant land. b. The tenant was aware of and expecting some construction activity on nearby sections as new homes were being built. c. However, in about February 2025, the unfinished part of the street became the access way for earth-moving trucks entering the vacant land. d. The earth-moving and truck activity has resulted in more noise and vibration than the tenant expected, and greater numbers of construction workers present in the area. This was unforeseen.
- The above was established by oral evidence from DO and KS, confirmation from CM that the landlord was not aware of the future development plans for the nearby vacant land, and photographs. One photograph shows the new access gate at the unfinished end of the street and the other shows a large area of earthworks and a site plan for the vacant land. The site plan proves there will be more construction work to come and probably for a lengthy period.
Will the tenant suffer severe hardship that is greater than the hardship of the landlord?
- The tenant would suffer severe hardship if the term of the tenancy were not reduced. The tenant’s partner suffers from a brain injury that is detrimentally affected by significant noise and vibration (as proven by a medical certificate and oral evidence). A medical practitioner recommended that the tenant and his partner move from the premises because of this.
- The landlord would suffer hardship if the term is reduced in that the landlord expected the tenancy to continue until at least 11 July 2025. No other evidence of hardship was supplied.
- I find that the tenant’s severe hardship would be greater than the landlord’s hardship.
Should the tenant pay the landlord compensation for any resulting loss?
- Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss; section 66(2) RTA.
- The landlord has supplied evidence after the hearing as follows:- a. That new tenants have been found as from 16 May 2025 at a weekly rent of $1,000.00 ($50.00 less per week than the tenant agreed to pay); b. That the landlord will suffer a loss of rent of $4,007.14 due to the early ending of the tenancy (this excludes $600.00 for rent owing to 21 April 2025); c. Estimating a final water bill of $64.19; d. Claiming expenses related to the early termination of $688.00 (as itemised) plus a signboard cost of $149.50.
- I award a total of $3,601.69 to the landlord, made up of – a. $600.00 for rent owing to 21 April 2025, b. $64.19 for estimated water usage, c. $837.50 for expenses related to early termination, d. $2,100.00 for two weeks of lost rent.
- The tenant accepts the costs in a, b and c above.
- I have decided that it is reasonable for the tenant to compensate the landlord for two weeks of lost rent. The unforeseen construction work is not the fault of either the landlord or the tenant, so this award means they both share in the loss caused by the term of the tenancy ending early. Both also acted reasonably and in good faith in trying to negotiate an early termination by consent. The landlord was given only limited information by the tenant about the reasons for the request (as the medical reasons are sensitive) and its proposed terms are standard when a fixed term tenancy is ended early (that a tenant must pay rent until a new tenant is secured as well as itemised expenses). For the tenant’s part, he gave the landlord 3 weeks’ notice of the vacate date and made the property available for viewings.
- I have not awarded the landlord the full amount of its loss partly because the time taken to find new tenants and the $50.00 difference in weekly rent may be partly related to the fact that there is now an active construction site nearby.
- I make no order for the filing fee.
- It was agreed in the hearing that the bond would remain at the Bond Centre. The parties can sign a bond refund form by agreement or, if they cannot agree, can make another application to the Tribunal.
- Neither party is at fault, so the interests of both tenant and landlord outweigh the public interest in their identities. Both landlord and tenant names are suppressed but not the tenancy address.