Published tribunal order
Tenancy Tribunal case 5248605 — Rent arrears
Decided 9 Jul 2025 · Published 9 Jul 2025 · Application 5248605
- Rent arrears
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay Fahey Property Management Limited As Agent For Owner $0.00 immediately, as calculated in the table below:
- The Bond Centre is to release the bond to the Landlord.
Reasons
- Both parties attended the hearing.
- The parties entered into a 1-year fixed term tenancy agreement on 6 July 2024. The Tenant rented a downstairs unit. Another tenant (the upstairs tenant) rented the unit above.
- The Tenant tried to terminate the tenancy early and stopped paying rent on 19 April 2025. The Tenant claims that she was entitled to end the tenancy early due to persistent bullying behaviour of the upstairs tenant that has resulted in accumulated and severe mental stress. She has applied to recover the bond.
- The Landlord says that the Tenants was not entitled to end the tenancy early and it seeks $6,325 of unpaid rent between 19 April and 6 July 2025. The Landlord has provided rent records which prove the amount owing. The Tenant’s claim
- The Tenant seeks orders confirming that she was entitled to end the fixed term tenancy early due to the conduct of the upstairs tenant.
- There is a presumption in law that the parties to a fixed term contract will be held to that term. There are limited exceptions that enable a Tenant to cancel a fixed term tenancy agreement and expect to be free of any ongoing obligations under the agreement. None of those exceptions exist in this case. No severe hardship
- There is no suggestion that the Tenant has suffered severe hardship due to an unforeseen change in her circumstances. 1 The Tenant provided no evidence as to any unforeseen change in her circumstances. Her grounds for terminating the tenancy all related to the actions of the upstairs tenant. No family violence
- There was no family violence allowing early termination of the tenancy. 2 The Tenant has attempted to end the tenancy due to family violence, but she cannot because. a. The Tenant and the upstairs tenant were not in a family relationship. 3 The Tenant says that she was told by Tenancy Services and Citizens Advice Bureau that she was in a family relationship with the upstairs tenant because they shared the same dwellinghouse. They did not share the same dwellinghouse (which is defined in the Family Violence Act 2018 as including same flat or townhouse). They lived in separate dwellinghouses (i.e. separate flats). They may have shared some common facilities, including the backyard and gardens, a washing line and a common entrance, but the dwellinghouses themselves were separate. Neither did they share the same household. The evidence is clear that they lived separately in separate units, with no intersection other than as neighbours. b. Even if they were in a family relationship, there was no family violence. 4 For the reasons set out in the following paragraphs, the alleged conduct of the upstairs tenant was not physical or psychological abuse. Instead, I consider that the Tenant’s impressions of that conduct were influenced by her own 1 Residential Tenancies Act 1986, s 66(1) enables a tenant to terminate a tenancy due to severe hardship due to unforeseen circumstances. 2 Residential Tenancies Act 1986, s56B enables a tenant to withdraw from a tenancy where they have been a victim of family violence while on the premises. 3 Family Violence Act 2018, s 12(c). 4 Family Violence Act 2018, s 9 anxiety and her mistaken belief as to her exclusive right to the possession and use of the yard. No breach of Landlord’s obligations
- Nor has the Landlord breached any of its obligations under the Residential Tenancies Act 1986 (the RTA) sufficient that the Tribunal should order earlier termination of the tenancy agreement. Relevant to this claim, section 45(1)(e) imposes an obligation on a landlord to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises.
- The Tenant alleges that the upstairs tenant harassed her, and her daughter and that the Landlord did not reasonable steps to prevent that harassment. In particular, the Tenant alleges that the upstairs tenant: a. hung her washing (including underwear) on the washing line that the Tenant claims belonged to her; b. used the backyard behind the premises, which the Tenant says was reserved for her use only; c. allowed strangers to use the backyard; d. threw bread and other items downstairs; e. parked her car in front of the Tenant’s garage; f. knocked on her door asking if she had taken parcels belonging to the upstairs tenant; and g. made noises, including in the early hours of the morning.
- The Tenant says that this conduct amounted to harassment and a “kind of terrible mental violence”.
- The Landlord says: a. the washing line, garden and yard were common areas, to be used by all residents; b. the visitors complained of by the Tenant included the upstairs tenant’s son; and c. the Tenant advised it of some of her concerns about the upstairs tenant on 3 March 2025, and the Landlord then took reasonable steps to address those concerns, including by forwarding the Tenant’s concerns to the upstairs tenant. The Landlord says that it was unaware of any issue before 3 March. Use of the washing line and backyard
- The tenancy agreement provides that the Tenant has use of the backyard. However, the agreement is silent as to whether the backyard is a common area or for the exclusive use of the Tenant. What is clear is that the upstairs tenant, who had lived at the property since 2018, had used the backyard before the start of the Tenant’s tenancy. The upstairs tenant has well established gardens and seems to have regularly used the washing line.
- The Tenant says that the Landlord promised that the backyard (including the gardens and washing line) was her exclusive area. She says that she clearly remembers that conversation with the Landlord’s property manager.
- The property manager who appeared at the hearing denies telling the Tenant that the backyard was for the Tenant’s exclusive use. The property manager says that she told the Tenant that the backyard was a common area.
- Throughout the hearing, the Tenant advised that she had difficulties with English, and she was assisted throughout the hearing by an interpreter. Given the property manager’s evidence as to what was said, the upstairs tenant’s prior use of the backyard and the Tenant’s assertions of her challenges with the English language, I cannot avoid the conclusion that the Tenant may have misunderstood what the property manager said about the backyard. I am therefore satisfied that the Tenant has not proven that she was told that the backyard was for her exclusive use. Instead, I find it more likely that the Tenant was told that the backyard was a common area.
- Neither has the Tenant proven that the way in which the upstairs tenant used the backyard amounted to harassment or a breach of her quiet enjoyment, peace, privacy or comfort.
- The Tenant was particularly upset about the upstairs tenant having her underwear on the washing line, which was visible from her kitchen. The Tenant claimed that seeing the upstairs tenant’s underwear was disgusting and caused significant emotional discomfort and humiliation to her and her daughter, affecting their daily life and mental wellbeing. Those may have been the Tenant’s feelings, but I see nothing inherently offensive in underwear being hung out to dry on a common washing line. I therefore find that the upstairs tenant’s use of the washing line does not breach any of the Landlord’s obligations under the RTA or tenancy agreement.
- The upstairs neighbour also kept a garden and much of the activity complained of by the Tenant related to that garden. The Tenant complained of visitors coming to water the garden while the upstairs tenant was away, or of people coming to deliver soil for the garden. It also seems that the upstairs tenant occasionally had other visitors in the garden, during which the Tenant says they would “gossip around”.
- The Tenant says that the presence of these visitors made her, and her 13-year- old daughter, feel unsafe. During the hearing, the Tenant stated that some of the visitors touched her and made inappropriate comments about her form. She had not raised those concerns with the Landlord or in the submissions and evidence filed with the Tribunal. I asked for further details. She provided no further details about the alleged touching or inappropriate comments. I therefore find those allegations unproven.
- The Tenant was also concerned that the upstairs tenant’s visitors could see into her home, making her and her daughter feel unsafe and vulnerable. The Tenant’s photographs show that visitors would have been able to see into her home through the windows adjacent to the backyard. But that alone is not an unreasonable interference of her quiet enjoyment, privacy, comfort or peace.
- Those visitors were authorised – by the upstairs tenant – to be in the yard and in the absence of any reliable evidence that they behaved inappropriately while there, I am not satisfied that the Tenant has proven any breach of the Landlord’s obligations. Items thrown from balcony
- The evidence from the Tenant is that the items that fell or were thrown from the deck above included wrappers, a piece of bread, one plastic pot plant saucer and one other small piece of lightweight plastics. There was no suggestion that the upstairs tenant intentionally threw those items at or near the Tenant or her daughter and I heard no evidence to show that the Tenant or her daughter were at any risk of harm. Further, as suggested by the Landlord, I cannot reasonably discount the possibility that at least some of those items fell or were blown from the upstairs tenant’s balcony, rather than deliberately thrown.
- I therefore find that the small number of items that fell or were thrown from the balcony did not amount to an interference with the Tenant’s quiet enjoyment, privacy, comfort or peace. Carparking
- The parking in the driveway was more problematic, and I accept that the upstairs tenant’s use of the driveway may have created a nuisance for the Tenant. But I am not satisfied that the nuisance was so significant that it amounted to a breach of the Landlord’s obligation sufficient to justify early termination of the tenancy.
- Neither am I satisfied that the Landlord knew about or failed to take reasonable steps to remedy this issue. The Tenant’s initial complaints to the Landlord in March 2025 did not mention parking as an issue, so I am not satisfied that the Landlord was provided with a reasonable opportunity to take steps to remediate that issue before the Tenant attempted to terminate the tenancy. Undelivered parcels
- The Tenant says that the upstairs tenant repeated accused her of taking her parcels. She says that these “confrontations” occurred once every two to three weeks and caused her ongoing emotional stress.
- The Tenant provided the following text message chain of one of these alleged confrontations:
- The Tenants believed that this text message exchange “carried an implicit accusation” that she had taken the upstairs tenant’s parcel. I disagree. I cannot see any implicit accusation in this text exchange. To me this is a polite enquiry from one neighbour to another. The Tenant says that such incidents occurred every two or three weeks but provided no other evidence to corroborate that allegation. I therefore find that the Tenant has not proven that the upstairs tenant harassed or unreasonably confronted her about missing parcels. Noises from upstairs
- In her application, the Tenant mentioned that the upstairs Tenant made noises that disturbed her. She led no evidence about this allegation during the hearing, and as a result, I find it unproven. Outcome of Tenant’s claim
- The Tenant’s claim seeking orders terminating the fixed term tenancy is dismissed. Although the Tenant was clearly of the view that she was entitled to terminate the tenancy early, she has not proven that any of the grounds for early termination of a fixed term tenancy agreement were present in this case. The Landlord’s claim for unpaid rent
- The Tenant stopped paying rent on 19 April 2025 and moved out. The Tenant had not been released from the tenancy. The Landlord had not agreed to end the fixed term tenancy. Neither was the Tenant entitled to leave the premises due to any breach of the tenancy agreement or RTA obligations by the Landlord.
- By leaving and not paying the rent, the Tenant abandoned the premises. Although not defined in the RTA, abandonment occurs when a tenant unlawfully departs the premises with no intention of returning and no intention of honouring his or her obligations under the lease. 5
- I have considered whether the Landlord was under any obligation to mitigate is loss by reletting the premises and note that the Tenant alleged that the Landlord failed to take adequate steps to find a replacement tenant. I conclude that the Landlord had no obligation to mitigate its loss arising from the Tenant abandoning the premises.
- Under s 61(3) of the RTA, a tenant who abandons premises subject to a fixed- term tenancy is liable to pay rent up to the expiry of the term or the date of commencement of a new tenancy. Under s 61(4) of the RTA, the landlord is under no obligation to mitigate its loss where the tenancy has been abandoned.
- That being the case, I find that the Landlord is entitled to recover the full amount it seeks – which is the unpaid rent between 19 April 2025 and 5 July 2025. The Tenants was obliged to pay the rent until the end of the fixed term, and the Landlord had not obligation to mitigate its loss. Filing fee
- The Landlord has succeeded in its claim and is entitled to recover the filing fee of $27. Outcome of the Landlord’s claim
- The Landlord is entitled to recover $6,352 from the Tenant. I order that the Tenant must pay $4,052 to the Landlord and that the Bond Centre is to release the bond to the Landlord. Name suppression
- The Tenant provided evidence of ongoing medical issues, in part due to stress and anxiety. Although she has been unsuccessful in her application, I consider that those medical issues mean that it is in the public interest to suppress her name and identifying details.