What was Tenancy Tribunal case 5425433 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5425433?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5425433?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 5425433?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13624978-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5425433 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5425433?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5425433?

The primary dispute was Rent arrears. Related themes: 14-day notice.

Where can I read the official tribunal order for case 5425433?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13624978-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5425433 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.
The landlord’s claim for termination is not proven and therefore dismissed.

Reasons

Both parties attended the hearing. The Tribunal was assisted by a mandarin interpreter for the landlord and the tenant’s support person for the tenant.
This tenancy began in 2022. The tenant lives at the property with her children who are now teenagers and young adults.
Late last year the tenant was diagnosed with tongue cancer, as a result of the illness she was unable to work and pay her rent on time. The tenant has had surgery in February this year and since then MSD has paid all her rent on time. The tenant’s rent arrears have also been fully paid. The tenant tells me that MSD pays the landlord her weekly rent by direct debt.
The tenant is currently undergoing further treatment. She does not want her tenancy to be terminated as she does not have the time nor ability to find another place to live whilst undergoing cancer treatment. She has indicated that when she is well enough to move, that she intends looking for another property to move to.
The landlord is sympathetic to the tenant’s condition but says that due to the rent not being paid on time at the end of last year that it has caused her financial stress as well. She also says that she has decided that she would like to move back into the house. She has not given the tenant any notice pursuant to s51 RTA to do that yet. The status of the tenancy.
The tenant had a fixed term tenancy until October 2025, it was clear from today’s hearing that the landlord thought that at the end of the fixed term that the tenancy would come to an end.
That is not the case, unless the landlord gives notice to end a tenancy in the effective period as set out in section 60A of the Residential Tenancies Act 1986 the tenancy continues as periodic tenancy. As no notice pursuant to s60A was given in the effective period then the tenancy has continued as a periodic tenancy.

What is the landlord seeking?

The landlord seeks termination of the tenancy pursuant to s55(1)(aa) RTA in that she has give the tenant 3 notices for nonpayment of rent which the tenant did not challenge.
The landlord also seeks termination for the tenant putting a hole in the wall, which the landlord says was not repaired when she last went to the property. The landlord says that she gave a s56 notice for this breach. The burden of proof
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) their claim.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

Should the tenancy be terminated?

The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. See section 55(1)(aa) Residential Tenancies Act 1986.
The landlord gave the tenants 3 notices on the 17 December, the 30 December and the 14 January. None of these notices were challenged by the tenant at the time.
However, at today’s hearing the tenant challenged the reference to water and rent being overdue, as the tenant says that throughout the tenancy the landlord has charged her the fixed cost for water, which she understands that the landlord is not able to do.
I can confirm that the landlord is only able to charge tenants for the water that they actually use. A landlord cannot charge the fixed costs. The landlord should reconcile the water bills paid by the tenant with what they should have been charged (only the usage) and credit the tenant with the difference.
A landlord cannot give a s55(1)(aa) notice for water rates arrears, it can only be used for rent arrears.
The landlord has produced a rent summary to the Tribunal, which only shows a period of 3 weeks, it does not show me the history of rent payments or whether at the time the s55(1)(aa) rent notices were given the tenant was in fact in 5 days overdue in paying rent. At today’s hearing I asked the landlord if she had an up to date rent ledger or any other evidence that she wanted to file and she said she did not have those items. A landlord has the obligation of proving their case at the date of hearing. The parties were given sufficient notice of today’s hearing, and I consider that the landlord has had adequate time to provide the Tribunal with this evidence.
In the absence of a full rent statement, I am not satisfied that the tenant was 5 days in arrears at the date of each notice and therefore the landlord has not proven that the notices were valid, and I cannot grant termination under s55(1)(aa).
I also note that the landlord has not filed a copy of any s56 notice, the evidence uploaded to the tribunal file under a ’14-day notice’ is a text message between the landlord and the tenant. It does not fulfil the criteria of a s56 notice and therefore termination cannot be given under s56 RTA. Next steps.
As the tenancy is periodic the landlord can give the tenant notice to terminate the tenancy under s51. The landlord should be careful to ensure that notice is given strictly in accordance with that section.
If either party has concerns about their rights or obligations, then they should contact the Tenancy Services on 0800 tenancy.

Reasons

Both parties attended the hearing. The Tribunal was assisted by a mandarin interpreter for the landlord and the tenant’s support person for the tenant.

This tenancy began in 2022. The tenant lives at the property with her children who are now teenagers and young adults.

Late last year the tenant was diagnosed with tongue cancer, as a result of the illness she was unable to work and pay her rent on time. The tenant has had surgery in February this year and since then MSD has paid all her rent on time. The tenant’s rent arrears have also been fully paid. The tenant tells me that MSD pays the landlord her weekly rent by direct debt.

The tenant is currently undergoing further treatment. She does not want her tenancy to be terminated as she does not have the time nor ability to find another place to live whilst undergoing cancer treatment. She has indicated that when she is well enough to move, that she intends looking for another property to move to.

The landlord is sympathetic to the tenant’s condition but says that due to the rent not being paid on time at the end of last year that it has caused her financial stress as well. She also says that she has decided that she would like to move back into the house. She has not given the tenant any notice pursuant to s51 RTA to do that yet. The status of the tenancy.

The tenant had a fixed term tenancy until October 2025, it was clear from today’s hearing that the landlord thought that at the end of the fixed term that the tenancy would come to an end.

That is not the case, unless the landlord gives notice to end a tenancy in the effective period as set out in section 60A of the Residential Tenancies Act 1986 the tenancy continues as periodic tenancy. As no notice pursuant to s60A was given in the effective period then the tenancy has continued as a periodic tenancy.

What is the landlord seeking?

The landlord seeks termination of the tenancy pursuant to s55(1)(aa) RTA in that she has give the tenant 3 notices for nonpayment of rent which the tenant did not challenge.

The landlord also seeks termination for the tenant putting a hole in the wall, which the landlord says was not repaired when she last went to the property. The landlord says that she gave a s56 notice for this breach. The burden of proof

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) their claim.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

Should the tenancy be terminated?

The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice. See section 55(1)(aa) Residential Tenancies Act 1986.

The landlord gave the tenants 3 notices on the 17 December, the 30 December and the 14 January. None of these notices were challenged by the tenant at the time.

However, at today’s hearing the tenant challenged the reference to water and rent being overdue, as the tenant says that throughout the tenancy the landlord has charged her the fixed cost for water, which she understands that the landlord is not able to do.

I can confirm that the landlord is only able to charge tenants for the water that they actually use. A landlord cannot charge the fixed costs. The landlord should reconcile the water bills paid by the tenant with what they should have been charged (only the usage) and credit the tenant with the difference.

A landlord cannot give a s55(1)(aa) notice for water rates arrears, it can only be used for rent arrears.

The landlord has produced a rent summary to the Tribunal, which only shows a period of 3 weeks, it does not show me the history of rent payments or whether at the time the s55(1)(aa) rent notices were given the tenant was in fact in 5 days overdue in paying rent. At today’s hearing I asked the landlord if she had an up to date rent ledger or any other evidence that she wanted to file and she said she did not have those items. A landlord has the obligation of proving their case at the date of hearing. The parties were given sufficient notice of today’s hearing, and I consider that the landlord has had adequate time to provide the Tribunal with this evidence.

In the absence of a full rent statement, I am not satisfied that the tenant was 5 days in arrears at the date of each notice and therefore the landlord has not proven that the notices were valid, and I cannot grant termination under s55(1)(aa).

I also note that the landlord has not filed a copy of any s56 notice, the evidence uploaded to the tribunal file under a ’14-day notice’ is a text message between the landlord and the tenant. It does not fulfil the criteria of a s56 notice and therefore termination cannot be given under s56 RTA. Next steps.

As the tenancy is periodic the landlord can give the tenant notice to terminate the tenancy under s51. The landlord should be careful to ensure that notice is given strictly in accordance with that section.

If either party has concerns about their rights or obligations, then they should contact the Tenancy Services on 0800 tenancy.

Tenancy Tribunal case 5425433 — Rent arrears

At a glance

Claims & awards

Tenancy Tribunal case 5425433 — Rent arrears

At a glance

Claims & awards

Order

Reasons

What is the landlord seeking?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Order

Reasons

What is the landlord seeking?

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions