Published tribunal order
Tenancy Tribunal case 5401368 — Rent arrears at 57 Cottrell Crescent, Onekawa, Napier 4110
Published 22 January 2026 · Application 5401368
Landlord favoured
- Rent arrears
Order
- The tenancy of Cheyenne Moana-Marit Awal at 57 Cottrell Crescent, Onekawa, Napier 4110 is terminated, and possession is granted to Kāinga Ora–Homes and Communities, at 11:59pm on Tuesday 27 January 2026.
- 2,520.00 immediately, calculated below:
Reasons
- The landlord attended the hearing. The tenant did not attend and couldn’t be contacted by phone.
- The landlord has applied for termination of the tenancy and rent arrears.
- Rent was at least 21 days in arrears on the date the application was filed.
- The landlord’s application proposed a programme for payment of the arrears supported by a conditional termination Order.
- With the tenant not attending today and having paid no rent since 17 July 2025, the tenancy must be terminated. See section 55(1)(a) Residential Tenancies Act 1986.
- The landlord provided rent records which prove the amount owing at the end of the tenancy.
- The length of time since any rent was paid brings into question whether the landlord has met its obligation under s.49 RTA which provides that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
- In Huang v Ashworh 1 the Tribunal had determined that applying that principle, the landlord should not be entitled to recover more than 3 months’ rent arrears.
- On appeal to the District Court 2 , the Court confirmed that a landlord has an obligation to mitigate rent arrears losses. In circumstances similar to this case, where the landlord had made several attempts to address the rent arears directly with the tenant, the Court said at paragraph [18], “I consider that [the landlord’s] attempts to resolve the issue of rent arrears without resorting to eviction were reasonable, especially for a tenancy that had lasted close to four years. But I qualify that: it is reasonable only up to a point. Where a tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point when it is being naive or careless to your own interests to persist giving the tenant more time to pay. For that reason I do not consider that the full arrears can be claimed. In other words I'm satisfied of balance of probabilities that there was some fairly to mitigate loss but less than that assessed by the Tribunal (3 months).”
- The Tribunal must assess, in the circumstances of each case, whether the steps taken by a party to mitigate claimed losses, were reasonable.
- The landlord’s evidence is that continued attempts were made to engage with the tenant and help her do what was necessary to get the WINZ income support she was entitled to.
- On visits to the premises, the tenant’s son was found to be living there. The tenant continued to tell the landlord that she was living there as well.
- The landlord did not completely ignore the accumulating losses. I accept that the tenant may have given what appeared to be plausible reasons why the rent had not been paid and assurances about their being paid.
- The landlord is not responsible for delays arising from the time its application to the Tribunal was filed. 1 Huang v Ashworth [2023] NZTT 4470826, 4599009 2 Huang v Ashworth [2024] NZDC 15726
- There had been a payment arrangement in place under which the tenant was paying weekly rent plus an additional $10.00 per week towards previous arrears owed. Payments stopped on 17 July 2025
- The failure to pay any rent after that date, bringing to an end the repayment programme, must have given rise to concerns about future rent payments and the accumulation of rent arrears again.
- The landlord is in the difficult position of having a landlord’s usual obligations, as well as doing its best to maintain tenancies wherever possible.
- Allowing for that, it seems to me that it would have been reasonable for the landlord have assumed, by 8 weeks after all payments had stopped and there were question about whether the tenant was in fact occupying the premises, on 11 September 2025, that there was a problem and it needed to take steps to end the tenancy to prevent the arrears building again.
- The landlord brought this application on 28 November 2025 and it was determined around 8 weeks later on 21 January 2026. Had the application been brought around 11 September it is fair to assume that it would have been heard around 8 weeks later, 6 November 2025.
- That would have resulted in the tenancy ending 13 November at which point the arrears were $2,520.00.
- The $900.00 difference between that and the amount owing to 27 January 2026 of $3,420.00, represents the part of the loss caused by the landlord’s failure to take reasonable mitigations steps and I find it is not is not recoverable.