Published tribunal order
Tenancy Tribunal case 5318679 — Rent arrears at 2 Riki Road, Point England, Auckland 1072
Decided 25 Aug 2025 · Published 25 Aug 2025 · Application 5318679
- Rent arrears
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
- The Bond Centre is to pay the bond of $2,640.00 ([Bond number suppressed]) to [The tenant/s] immediately.
- Barfoot & Thompson Limited Greenlane as agent for Gwen Shyong Foo, Mei Fang Lin And Kamlesh Mudaliar as Trustees of the Foo Family Trust must pay [The tenant/s] $888.98 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing which was held by video conference as the tenants are no longer living in New Zealand. The landlord was represented by Ms Chu.
- The landlord has filed a claim for rent arrears following the end of the tenancy.
- The tenants have applied for reimbursement of overpaid rent and for reimbursement of break-lease expenses paid. Background
- This was a fixed term tenancy that began on 29 December 2023 and was initially for a fixed term of 12 months. The parties then extended the term of the tenancy for a further year to 25 December 2025.
- On 24 April 2025 the tenants gave formal notice that they would like to be released from the fixed term tenancy due to unforeseen circumstances (having previously advised the landlord of their circumstances and seeking confirmation of the process to be followed).
- The landlord agreed to release the tenants from the fixed-term on the basis that the landlord would look for new tenants and the tenants would be liable for reasonable re-letting expenses and rent until new tenants moved in.
- The tenants left the property on 25 May 2025. The landlord found new tenants who moved in on 20 June 2025. Rent
- There is a dispute between the parties over rent.
- The tenants say that, having agreed to release them from the fixed-term tenancy, the landlord was under an obligation to take steps to find tenants in a timely manner but did not do so.
- The tenants say that the landlord was very slow to respond to them, to then list the property for rent, that the landlord advertised the property at a significantly increased rent (from $640 per week to $720 per week) and was often late to viewings which meant that they had to show people around themselves.
- The tenants produced a detailed timeline of communication between themselves and the landlord together with dates that the property was advertised for rent and the dates that viewings took place.
- In addition, the tenants say that the landlord took back possession on 26 May 2025 when they handed back the key and started doing repairs and renovations both inside and out (including painting ceilings and doors, and caulking the kitchen countertop, replacing roof tiles, repairing a gutter and various garden maintenance) and that they should not be charged rent for a property from that point on.
- The tenants say that they accidentally paid a week of rent on 29 May 2025 and so overpaid by four days. They seek reimbursement of the sum of $377.14.
- The landlord says that there was some initial confusion due to the tenants giving formal notice around Easter and Anzac Day and relevant staff being out of the office. However the landlord said that apart from that short delay the landlord acted in a timely manner, and was entitled to increase the rent as they had not increased the rent when the fixed term was extended for another term. They said that the property was ultimately rented for $700.00 per week.
- The landlord says that they are entitled to rent up to the day prior to new tenants moving in, being 19 June 2025 ($1,320.00). However, for the purposes of the hearing today Ms Chu explained that the landlord was only seeking an additional four days of rent, being $377.14.
- When tenants enter into a fixed term tenancy they cannot give notice to end the tenancy. The fixed term may only be reduced by agreement between the parties or by order of the Tribunal.
- In this case the parties have agreed that the landlord would look for new tenants and that the tenants would pay rent until a new tenant was found. It is implicit in that agreement that a landlord will look for tenants in a timely manner.
- Assessing rent in such circumstances is a balancing act for the Tribunal. On one hand, the tenants should not be charged for rent for a longer period than should be reasonably be expected had the landlord taken all reasonable steps to find new tenants. On the other hand, the landlord should not be left out of pocket because they have agreed to reduce the fixed term that the tenants had otherwise agreed to.
- It is always difficult for the Tribunal to assess whether additional or more timely steps by the landlord might have led to a new tenancy beginning earlier. In this case there was certainly some initial confusion (which I do not consider can be explained by the Easter break as that occurred the week prior to Anzac day).
- There were also inevitably delays as the landlord did renovation work and increased rent.
- Having considered all of the evidence carefully, and attempting to balance the interests of each party, I consider that that the rent paid by the tenants, slightly over the date on which they vacated, is a fair result. The landlord has missed out on two weeks of rent, which I consider reasonable given the delays, the renovations, and the increase in rent. I note in addition that the landlord is receiving $700.00 per week in rent, and had the tenancy continued they would be receiving only $640.00 in rent (until December 2025).
- Both parties’ claims for orders regarding payment of rent are therefore dismissed. Break-lease costs
- The tenants say that when they asked to break the fixed term the landlord sent them an email advising that they could be charged up to $756.50 plus GST for expenses incurred by the landlord in finding new tenants.
- The tenants then said that the landlord charged them the sum of $869.88 for finding new tenants. They say that paid the sum because they felt that they had no other option but they now seek recovery of the amount paid because the landlord did not look for tenants in a timely manner and the expenses are not justified.
- The landlord said that they incurred expenses finding new tenants and are entitled to pass these expenses on to the tenants.
- There is provision in the Residential Tenancies Act for landlords to recover expenses reasonably incurred by the landlord when agreeing to early termination of a fixed term tenancy (in this case under section 50(1)(d) RTA).
- Section 44A provides that a landlord who consents to the tenant early termination of the tenancy may seek to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the early termination.
- However Section 44A(2) requires that a landlord who seeks to recover such expenses must first provide an itemised account of the expense to the tenant. A landlord who takes any steps to recover such expenses without first providing an itemised account of the expenses to the tenant commits and unlawful act.
- In this case the landlord did not provide an itemised account to the tenants before seeking to recover those expenses from the tenants (and in fact had not done so prior to the hearing today) 1 . The landlord simply charged the maximum amount estimated.
- I do not consider that the landlord was entitled to recover the re-letting expenses from the tenants without having first provided them with an itemised account. I order that the landlord reimburse the tenant for the amount charged, being $869.88. 1 The landlord attempted to file an itemised account of expenses after the hearing, which was not accepted for filing, but this would not have assisted the landlord’s position as the itemised account must be provided to the tenants before payment is sought Filing fee and name suppression
- The tenants have been the successful party overall and are therefore entitled to orders reimbursing the filing fee paid ($28.00) and for name suppression.