Published tribunal order
Tenancy Tribunal case 5228391 — Rent arrears at Unit/Flat 1, 80 Taumata Road, Sandringham, Auckland
Decided 16 Sept 2025 · Published 16 Sept 2025 · Application 5228391
- Rent arrears
- Property damage
- Cleanliness
Order
- The Bond Centre is to pay the bond of $4,160 (6517113-001) to the parties as set out in the table below:
- All other claims are dismissed.
Reasons
Background
- The Landlord and Tenants entered into a 12-month fixed term tenancy agreement on 21 January 2024. The Tenant asked to break the fixed term tenancy on 25 September 2024. They wanted to move to a larger house. The Landlord agreed to that request, conditional on the Landlord finding a replacement tenant. The parties also agreed that the Tenants would pay the Landlord’s reasonable cost of finding a replacement tenant.
- The Landlord says that, despite its significant effort, it was unable to find a suitable replacement tenant. The Tenants do not agree that the Landlord made such significant efforts. The Tenants say that they made greater efforts, but the Landlord did not consent to any of the potential tenants they found.
- The Tenants then asked if they could find a sub-tenant. The Landlord agreed. The Tenants then signed a sublease with Katie Farrell (the sub-tenant) in November 2024. Under the sublease, the sub-tenant was to pay all rent and water rates to the Tenants, who was to then pay those amounts to the Landlord.
- The relationship between the sub-tenant and Landlord seems to have started well (other than issues with a ranch slider), and by January 2025, the Landlord and sub-tenant had agreed verbally to enter into a new fixed term tenancy. On about 18 January 2025 – two days before the expiry of their fixed term tenancy - the Landlord advised the Tenants that it would enter into a new tenancy agreement with the sub-tenant.
- The Landlord then changed its mind, following complaints about the sub-tenant from neighbours. The Landlord withdrew the offer to lease the premises to sub- tenant before any final agreement was formed.
- The sub-tenant did not vacate the premises immediately when the fixed term tenancy ended on 20 January 2025. The Tenants say that the sub-tenant left on 27 January 2025. The Landlord says that she did not leave the premises until about 7 March, which is the first day that the Landlord says it had access to the premises.
- The Landlord says that when the sub-tenant did leave, there was significant unpaid rent, unpaid water rates, the locks required replacement twice, the sub- tenant left behind rubbish, the premises were untidy, and repairs were required.
- The Landlord now seeks the following amounts from the Tenants: Rent arrears$6,997.14 Water rates arrears$299.13 Locksmith $300 Rubbish removal$165 Damage to the walls$417.70 Curtain repair$356.50 Carpet stain removal$207 Lease break fee$1,952.15 Filing fee$27
- The Tenants accept some liability for rent and water arrears and rubbish removal and have paid $2,130.08 to the Landlord. They dispute all other amounts and have cross claimed. They seek orders preventing the Landlord from pursuing them for the lease break fees outside of the Tribunal. It seems that the Landlord has hired a debt collector to collect that alleged debt. I cannot make that order, but my finding that the Landlord is not entitled to recover most of the amount it seeks resolves that dispute anyway.
- The Landlord’s evidence and written statements also contained allegations about pets and unauthorised renovations and electrical work. The Landlord also made allegations against the sub-tenant, including by providing a copy of a previous Tribunal decision allegedly relating to the sub-tenant’s husband. Those allegations were not included in the claim, so I put them to one side for the purposes of this decision. The Issues
- The issues I must determine in this case are: (a)When did the tenancy end? (b)What rent and water rates is the Landlord entitled to recover? (c)Is the Landlord entitled to recover the lease break fee? (d)What other costs can the Landlord recover from the Tenants?
When did the tenancy end?
- The Landlord has supplied a rent summary, which shows that the Tenants stopped paying the rent on 4 January 2025. The Landlord says that the Tenants (through the sub-tenant) remained in possession until 7 March 2025, meaning there are now rent arrears of $6,997.14.
- The Tenants dispute this amount. They say that the tenancy ended on 20 January 2025, when the fixed term came to an end. They say that they were in South Africa by that time and, as far as they were aware, the Landlord had negotiated a new lease with the sub-tenant, that would continue beyond 20 January 2025. The Landlord says that is not the case, and the fixed term tenancy converted to a periodic tenancy on 21 January 2025, and the Tenants remain liable for the rent beyond that date.
- The date that the tenancy ended is therefore important to determining the rent arrears owed by the Tenants to the Landlord. The fixed term tenancy did not convert to a periodic tenancy
- A fixed term tenancy becomes periodic upon the expiry of a fixed term tenancy unless the parties agree not to continue with the tenancy, 1 or: (a)the parties agree to renew or extend; 2 (b)one party gives written notice of their intention not to continue; 3 or (c)one party otherwise lawfully ends the tenancy on notice. 4
- Where the parties agree not to continue the tenancy, the tenancy is terminated at the expiry of the fixed term. 5
- The Landlord says that the tenancy continued beyond 20 January. It says that it was told by Tenancy Services that the fixed term tenancy converted to a periodic tenancy on 20 January because the sub-tenant had remained in possession of the premises.
- If Tenancy Services told the Landlord that the tenancy converted to a periodic tenancy, that advice was incorrect. The fixed term tenancy had ended on 20 January 2025 by agreement, so it could not convert into a periodic tenancy.
- Although neither party gave written notice to the other regarding the renewal, extension, or termination of the fixed term tenancy, I find that the background clearly demonstrates that the parties had an agreed intention that the tenancy would not continue beyond the end of the fixed term. The Landlord knew that the Tenants had moved out and found a new rental property and had no intention of returning or extending the term of the fixed term tenancy. That is why the Landlord entered into discussions with the sub-tenant about a new lease. It knew that the Tenants had no intention of extending the fixed term.
- The tenancy therefore terminated on 20 January 2025 and did not convert into a periodic tenancy. The Landlord’s argument that the tenancy continued, and continued until such time as the Tenants clearly communicated that the tenancy had ended must fail. The parties had agreed that the fixed term tenancy would terminate on 20 January. 1 Residential Tenancies Act 1986, s 60A(2)(b). 2 Residential Tenancies Act 1986, s 60A(2)(a). 3 Residential Tenancies Act 1986, s 60A(2)(c) 4 Residential Tenancies Act 1986, s 60A(2)(d). 5 Residential Tenancies Act 1986, s 50(1)(a). The sub-lease ended at the same time as the fixed term tenancy
- The sub-lease between the Tenants and the sub-tenant also ended on 20 January. On the termination of a fixed term tenancy, all sub-tenancies are also deemed to be terminated. 6 The Landlord was entitled to retake possession of the premises after 20 January
- After 20 January, the sub-tenant was a squatter. The tenancy between the Landlord and the Tenants had terminated and the sub-tenant had no contractual relationship with the Landlord that entitled her to remain in possession. By remaining in possession, the sub-tenant became a squatter.
- Because the sub-tenant was a squatter, the Landlord was entitled to retake possession. If the sub-tenant refused to hand over possession, the Landlord was entitled to apply to the Tribunal for a possession order granting possession of the premises to the Landlord. 7 The Landlord did not do that, perhaps under the mistaken belief that the tenancy had converted to a periodic tenancy, which for the reasons set out above, it had not. The Tenants remained liable while the sub-tenant is in possession of the premises
- Although the sub-tenant was a squatter, the Tenants remained liable while the sub-tenant remained in possession of the premises after 20 January. The Tenants had an obligation to quit the premises at the end of the tenancy, 8 including by ensuring that the sub-tenant had also quit the premises. Where the Tenants (or the sub-tenant) remained in occupation after the tenancy has terminated, all the Tenants’ obligations to the Landlord, including the obligation to pay rent and water rates, continued until the Tenants (and the sub-tenant) ceased to occupy the premises. 9 The Landlord has proven that the sub-tenant remained in possession until 27 January
- The evidence shows that the sub-tenant remained at premises as a squatter until at least 27 January. The Tenants have provided evidence to show that the sub- tenant moved into their house on or about 27 January.
- The Tenants say that the sub-tenant required accommodation at short notice, given the Landlord had belatedly withdrawn its offer to let the premises to the sub-tenant. As they were overseas, the Tenants agreed to allow the sub-tenant to live temporarily at their house.
- The Landlord says that the sub-tenant did not vacate the premises until much later and is seeking to recover rent and water rates until 7 March 2025. 6 Residential Tenancies Act 1986, s 57(1). 7 Residential Tenancies Act 1986, s 65(1). 8 Residential Tenancies Act 1986, s 40(1)(e)(i). 9 Residential Tenancies Act 1986, s 60(1).
- As the applicant, it is for the Landlord to prove, on the balance of probabilities, that the sub-tenant remained in possession, and I am not satisfied that the Landlord has proven that the sub-tenant remained in possession after 27 January.
- The Landlord has provided photographs dated 27 January showing two vehicles and a trailer parked at the premises, timber in the driveway, and other possessions and rubbish in various locations. The presence of the vehicles and trailer is consistent with the sub-tenant remaining in possession at that time.
- The Landlord appears to have assumed that the sub-tenant remained in possession of the premises after that date, again perhaps due to its mistaken belief that the fixed term tenancy had converted to a periodic tenancy, but the evidence does not demonstrate that the sub-tenant did remain in possession.
- The Landlord mentioned statements from neighbours, but none were provided to the Tribunal. The Landlord also says that it conducted visits, but the evidence from those visits, including videos from 4 and 15 February 2025 and photographs of the exterior of the premises, do not demonstrate, on the balance of probabilities, that the sub-tenant remained in possession of the premises.
- In that regard, I note that the 4 and 15 February 2025 videos show that the vehicles and the trailer that were present on 27 January were no longer at the premises. The videos do show that the sub-tenant had left rubbish, belongings, and timber behind, but that is not evidence that the sub-tenant remained in possession of the premises. It is common for this Tribunal to deal with claims where a Landlord seeks to recover the cost of rubbish and abandoned possession at the end of a tenancy.
- The Landlord also says that the Tenants remained in possession because they did not return the keys. I agree that the Tenants did not return the keys, but that is not proof that she remained in possession or that the Landlord could not re-let the premises, particularly where the property manager also had a key. 10
- The Landlord also says that the Tenants did not respond to her phone calls, text messages and emails, so the Landlord did not know whether it had access to the premises. The Tenants say they were in South Africa and had left New Zealand believing that the Landlord and sub-tenant had agreed to a new tenancy, meaning nothing more was required of them. Given my finding that the fixed term tenancy expired on 20 January 2025, I find that any failure by the Tenants to respond to the Landlord is not evidence that the tenancy continued.
- Finally, the fact that the sub-tenant then engaged cleaners and a gardener and changed the locks in early March 2025 is not evidence that she remained in possession throughout. Instead, having heard the Tenants’ evidence, I am 10 See Stoeveken v Aso & Toheriri [2022] NZDC 9698 at [38] and [39]. satisfied that the sub-tenant only engaged cleaners and a gardener and returned to the premises in March as the Landlord had complained to the Tenants about the state of the premises. The Tenants then insisted that the sub-tenant return to the premises to clean up. The sub-tenant returning to the premises at the insistence of the Tenants is not evidence that she remained in possession throughout.
- I therefore find that the evidence shows that the sub-tenant remained in possession until 27 January 2025. The evidence provided by the Landlord does not establish possession after that date.
What rent and water rates is the Landlord entitled to recover?
- The Tenants are liable for all unpaid rent from 4 to 27 January. The weekly rent is $790, or $112.857 per day. 23 days’ unpaid rent is $2,595.71. That is the amount the Tenants must pay the Landlords for rent.
- The Tenants are also responsible for the supply of water if the water supplier charges for water provided to the premises based on consumption. 11 The Landlord has produced three invoices dated 13 January 2025, 13 February 2025 and 11 March 2025.
- The Tenants are liable for all water consumption charges set out in the 13 January 2025 invoice, totalling $35.48. The Tenants are also liable for all water consumption up to and including 27 January. I can only estimate that amount, because the next invoice was not issued until 13 February and related to consumption charges of $91.21 up to and including that date.
- I find that the Landlord is entitled to recover this entire amount. I have found that the Landlord has not proven that the sub-tenant remained in possession after 27 January, so there would have been no water consumption beyond that date. All charges must therefore relate to the time the sub-tenant was in possession. The Landlord is therefore entitled to recover the entire water consumption charge in the 13 February invoice.
- I find that the Tenants owe $126.69 for unpaid water rates. The lease break fee
- A Landlord is entitled to recover expenses reasonably incurred in re-letting premises where it consents to the early termination of a fixed term tenancy. 12 A landlord who seeks to recover such expenses must first provide an itemised account of those expenses to the tenant. 13 11 Residential Tenancies Act 1986, s 38(3) and (4) 12 Residential Tenancies Act 1986, s 44A(1) 13 Residential Tenancies Act 1986, s 44A(2).
- The Landlord seeks $1,952.15, which it says is the reasonable cost, on a time basis, of attempting to re-let the premises after the Tenants asked to end the tenancy early. It has provided extensive records to justify this fee.
- The Landlord is not entitled to recover any cost relating to the early termination of the tenancy because the tenancy did not terminate early. The fixed term tenancy continued until 20 January 2025.
- Here, the tenancy continued because the Landlord did not find a new tenant and did not consent to any of the potential tenants proposed by the Tenants. The Landlord cannot therefore recover any fee for the early termination of the tenancy because there was no early termination.
- The Landlord can recover expenses reasonably incurred in subletting the premises. 14 The evidence shows that the Landlord did incur some expense in agreeing to sublet the premises to the sub-tenant. The Landlord says that the property manager’s time is charged at $70 per hour. Having considered the evidence, especially that most of the effort in subletting seems to have been incurred by the Tenants, I allow the Landlord to recover $140 as the reasonable cost of agreeing to sublet the premises. The other costs Locksmith charges
- The Landlord wants to recover $300, which was the cost of having Okgo Locksmiths twice replace the locks. The Landlord says that it had retaken possession of the premises by this time and the Tenants had not returned the keys, so it paid to have the locks replaced.
- The sub-tenant then returned to the premises on about 5 March 2025 to clean, as requested by the Tenants, after the Landlord had raised concerns about the state of the premises. Because the locks had been changed, it seems the sub-tenant then instructed a locksmith to change the locks so she could get access. The Landlord says that this was done without its consent and those keys were not given to it, so it paid Okgo Locksmiths to replace the locks again on 13 March.
- The Tenants were obliged to return the keys at the termination of the tenancy. 15 They did not do so. They say that the sub-tenant left the keys at the premises, but I accept the Landlord’s evidence that she did not, or at least, the Landlord could not reasonably find them. I also find it unlikely that the Landlord would have incurred the cost of replacing the locks if the keys had been left at the premises. The Landlord is therefore entitled to recover the cost of replacing the locks as set out in the invoice of 6 March. 14 Residential Tenancies Act 1986, s 44A(1) 15 Residential Tenancies Act 1986, s 40(1)(e)(iv).
- The Tenants are prohibited from changing or altering the lock without the Landlord’s consent. 16 The sub-tenant (and therefore the Tenants) changed the locks on about 5 March without the Landlord’s consent and then did not give the keys to the Landlord. The Landlord was entitled to again replace the locks and recover that cost from the Tenants.
- I therefore find that the Landlord is entitled to recover $300 from the Tenants for replacing the locks. Rubbish removal
- The Landlord paid $165 to remove hardfill rubbish from the premises at the end of the tenancy. The Tenants accept liability for this cost. I order accordingly. Carpet stains, curtain repair and wall damage
- There is a general principle that a tenant has no liability or obligation to meet the cost of any damage to the premises. 17 However, a tenant can be liable where: (a)the landlord proves that the damage was caused during the tenancy and was not fair wear and tear; and (b)the tenant does not prove that the damage was not caused by any careless or intentional act or omission. 18
- This means that, as a starting point in any damages claim, the Landlord bears the onus of proving that it is more likely than not that there was damage, that the damage occurred during the tenancy and that the damage exceeded fair wear and tear.
- The entry inspection video shows that the carpets are unstained. The exit inspection video clearly shows stains on the carpet in two places. Those stains were not present at the start of the tenancy.
- The Landlord paid $207 to Centric Cleaning and Remediation to remove the stains. The Landlord is entitled to recover that amount. I am satisfied that the stains were caused carelessly.
- The Landlord says a set of curtains were torn and mouldy at the end of the tenancy. It has provided an invoice for $356.50 for cleaning and repairing the curtains.
- The Landlord must prove that the curtains were damaged and that the damage occurred during the tenancy. The entry inspection and exit inspection videos do not clearly show the condition of the curtains at the start or end of the tenancy 16 Residential Tenancies Act 1986, s 46(2). 17 Residential Tenancies Act 1986, s 49A. 18 Residential Tenancies Act 1986, s 49B. and there is no other conclusive evidence showing the extent of mould or damage to the curtains or that the damage or mould occurred during the tenancy.
- I therefore find that the Landlord has not proven that the curtains were damaged during the tenancy, and this is not a cost the Tenants should be liable for.
- For the same reasons, I find that the Landlord is not entitled to recover the $417.70 cost of repairs the walls. The entry inspection and exit inspection videos do not clearly show the condition of the walls at the start or end of the tenancy sufficient for me to be satisfied that the damage was more than wear and tear and occurred during the tenancy. There is no other conclusive evidence showing the extent of or cause of any damage. Filing fee and suppression
- Neither party has been substantially or wholly successful in this claim. I therefore make no order for name suppression or payment of filing fees. Bond
- I direct the Bond Centre to pay the bond to the parties as ordered above.