What was the outcome of Tenancy Tribunal case 4564572?

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

How much money was awarded in case 4564572?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $4,642.86 awarded to landlord

What type of tenancy dispute was case 4564572?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4564572?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9247171-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4564572?

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

How much money was awarded in case 4564572?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $4,642.86 awarded to landlord

What type of tenancy dispute was case 4564572?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4564572?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9247171-Tribunal_Order.pdf.

Unit/Flat 21, 97 Filleul Street, Dunedin Central, Dunedin Tenancy Tribunal Case 4564572 — Rent arrears

Claims and awards in Tenancy Tribunal application 4564572 — net $2,713.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18/5/2023	$4,642.86	Rent arrears to 18/5/2023
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,713.30
Total payable by Tenant to Landlord	$2,713.30

Order

An application for suppression has been made in this case, but the Tribunal declines to order suppression of the tenant name and identifying details.
The application by Bellal Sediqi and Hamza Sediqi for reduction of the term of their fixed term tenancy at Unit/Flat 21, 97 Filleul Street, Dunedin Central, Dunedin 9016 and compensation of $1,500.00 is dismissed.
Bellal Sediqi and Hamza Sediqi must pay Cutlers Limited As Agent For Tessa Goldsmith $2,713.30 immediately, calculated as per the table below:
The Bond Centre is to pay the bond of $1,950.00 (6480357-001) to Cutlers Limited As Agent For Tessa Goldsmith immediately.

Reasons

The landlord and one tenant attended the rescheduled hearing.
The landlord applied for termination of the tenancy and rent arrears.
Just prior to the hearing on 18/5/2023 the tenant filed a cross application for reduction of the term of their fixed term tenancy and compensation of $1,500.00 for the delay in re-letting the premises.
By order dated 18/5/2023 the Tribunal terminated the tenancy immediately to mitigate loss, because the tenant had vacated on 28/4/2023 and the hearing had to be adjourned due to the landlord not having had notice of the cross application.

Should the term of the tenancy be reduced?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The Tribunal has held that it cannot reduce the term of a fixed-term tenancy on the application of one of several co-tenants (Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
In Bond v Tang Invercargill TT09/583IN the Tribunal discussed that section 66 was used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed-term agreements can create hardship when circumstances unexpectedly turn against them and landlords who have financial expectations arising from the same bargain. Has there been an unforeseen change in the tenant’s circumstances?
Unfortunate as it may be for the tenant, I find the evidence does not establish there has been an unforeseen change in their circumstances.
In his submissions the tenant relied on the inability of his parents to help pay a share of the rent because their property had been damaged during the flooding in Auckland.
The tenant suggested this was an ongoing issue and as a result they could not afford the rent of $650.00 per week for the premises.
The landlord submitted that the tenant had initially given 28 days notice on 3/4/2023 to end the tenancy and the issue of the Auckland flooding had not been raised before the last hearing.
Further the landlord submitted that the premises were found abandoned after an inspection on 5/5/2023.
By itself the fact that the tenant cannot afford to pay the rent without the assistance of parents is not an unforeseen change in circumstances.
Moreover, the tenancy agreement was signed on 16/2/2023, after the flooding on Auckland anniversary weekend at the end of January.
This is not a situation where circumstances have unexpectedly turned against the tenant.
As I have determined there has been no unforeseen change in the tenant’s circumstances, I do not need to consider the second part of the test; that is whether the severe hardship the tenant would suffer if the term of the tenancy is not reduced would be greater than the hardship the landlord would suffer if the term were reduced.

Does the tenant owe rent arrears?

The landlord re-let the premises on 19/5/2023 and claimed arrears to 18/5/2023.
The landlord provided rent records which support the amount claimed.

Should compensation be awarded?

The tenant sought compensation because they believed the landlord had deliberately delayed placing new tenants in the property with the “intention of deliberately extracting additional funds”.
In support of the claim the tenant provided texts and emails showing the names and contact numbers of three people interested in taking over the tenancy.
On the other hand, the landlord submitted that when they became aware the tenant had vacated, they advertised at no costs to the tenant, found suitable replacement tenants within three days and had signed new tenants to take over the tenancy within ten days.
In addition, the landlord suggested that the initial prospective tenant found by the outgoing tenant was unsuitable and the other two prospective tenants were found after the premises had been relet.
Further the landlord suggested that had they known when the tenant first purported to give notice, about the rent difficulties being due to Auckland flooding issues, then they may have handled the situation differently.
I find the tenant is not entitled to any compensation and the claim fails.
Under a fixed term tenancy, as is the case here, a tenant is liable for rent to the end of the term or when the premises are re-let, whichever date comes first.
The evidence does not support that the landlord deliberately delayed in reletting the premises.
Rather, I am persuaded that once the landlord became aware the tenant had vacated, they took immediate steps to mitigate the loss of both parties.
An example of this is that they did not ask for the tenant to pay any advertising fee.
As Cutlers Limited As Agent For Tessa Goldsmith has wholly succeeded with the claim I must award the filing fee.
Suppression is not granted to the tenant under section 95A because they were unsuccessful with their claim.

Claims and awards in Tenancy Tribunal application 4564572 — net $2,713.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 18/5/2023	$4,642.86	Rent arrears to 18/5/2023
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,713.30
Total payable by Tenant to Landlord	$2,713.30

Order

An application for suppression has been made in this case, but the Tribunal declines to order suppression of the tenant name and identifying details.
The application by Bellal Sediqi and Hamza Sediqi for reduction of the term of their fixed term tenancy at Unit/Flat 21, 97 Filleul Street, Dunedin Central, Dunedin 9016 and compensation of $1,500.00 is dismissed.
Bellal Sediqi and Hamza Sediqi must pay Cutlers Limited As Agent For Tessa Goldsmith $2,713.30 immediately, calculated as per the table below:
The Bond Centre is to pay the bond of $1,950.00 (6480357-001) to Cutlers Limited As Agent For Tessa Goldsmith immediately.

Reasons

The landlord and one tenant attended the rescheduled hearing.
The landlord applied for termination of the tenancy and rent arrears.
Just prior to the hearing on 18/5/2023 the tenant filed a cross application for reduction of the term of their fixed term tenancy and compensation of $1,500.00 for the delay in re-letting the premises.
By order dated 18/5/2023 the Tribunal terminated the tenancy immediately to mitigate loss, because the tenant had vacated on 28/4/2023 and the hearing had to be adjourned due to the landlord not having had notice of the cross application.

Should the term of the tenancy be reduced?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The Tribunal has held that it cannot reduce the term of a fixed-term tenancy on the application of one of several co-tenants (Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
In Bond v Tang Invercargill TT09/583IN the Tribunal discussed that section 66 was used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed-term agreements can create hardship when circumstances unexpectedly turn against them and landlords who have financial expectations arising from the same bargain. Has there been an unforeseen change in the tenant’s circumstances?
Unfortunate as it may be for the tenant, I find the evidence does not establish there has been an unforeseen change in their circumstances.
In his submissions the tenant relied on the inability of his parents to help pay a share of the rent because their property had been damaged during the flooding in Auckland.
The tenant suggested this was an ongoing issue and as a result they could not afford the rent of $650.00 per week for the premises.
The landlord submitted that the tenant had initially given 28 days notice on 3/4/2023 to end the tenancy and the issue of the Auckland flooding had not been raised before the last hearing.
Further the landlord submitted that the premises were found abandoned after an inspection on 5/5/2023.
By itself the fact that the tenant cannot afford to pay the rent without the assistance of parents is not an unforeseen change in circumstances.
Moreover, the tenancy agreement was signed on 16/2/2023, after the flooding on Auckland anniversary weekend at the end of January.
This is not a situation where circumstances have unexpectedly turned against the tenant.
As I have determined there has been no unforeseen change in the tenant’s circumstances, I do not need to consider the second part of the test; that is whether the severe hardship the tenant would suffer if the term of the tenancy is not reduced would be greater than the hardship the landlord would suffer if the term were reduced.

Does the tenant owe rent arrears?

The landlord re-let the premises on 19/5/2023 and claimed arrears to 18/5/2023.
The landlord provided rent records which support the amount claimed.

Should compensation be awarded?

The tenant sought compensation because they believed the landlord had deliberately delayed placing new tenants in the property with the “intention of deliberately extracting additional funds”.
In support of the claim the tenant provided texts and emails showing the names and contact numbers of three people interested in taking over the tenancy.
On the other hand, the landlord submitted that when they became aware the tenant had vacated, they advertised at no costs to the tenant, found suitable replacement tenants within three days and had signed new tenants to take over the tenancy within ten days.
In addition, the landlord suggested that the initial prospective tenant found by the outgoing tenant was unsuitable and the other two prospective tenants were found after the premises had been relet.
Further the landlord suggested that had they known when the tenant first purported to give notice, about the rent difficulties being due to Auckland flooding issues, then they may have handled the situation differently.
I find the tenant is not entitled to any compensation and the claim fails.
Under a fixed term tenancy, as is the case here, a tenant is liable for rent to the end of the term or when the premises are re-let, whichever date comes first.
The evidence does not support that the landlord deliberately delayed in reletting the premises.
Rather, I am persuaded that once the landlord became aware the tenant had vacated, they took immediate steps to mitigate the loss of both parties.
An example of this is that they did not ask for the tenant to pay any advertising fee.
As Cutlers Limited As Agent For Tessa Goldsmith has wholly succeeded with the claim I must award the filing fee.
Suppression is not granted to the tenant under section 95A because they were unsuccessful with their claim.

Tenancy Tribunal case 4564572 — Rent arrears at Unit/Flat 21, 97 Filleul Street, Dunedin Central, Dunedin

At a glance

Tenancy Tribunal case 4564572 — Rent arrears at Unit/Flat 21, 97 Filleul Street, Dunedin Central, Dunedin

At a glance

Award balance

Claims & awards

Order

Reasons

Should the term of the tenancy be reduced?

Does the tenant owe rent arrears?

Should compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the term of the tenancy be reduced?

Does the tenant owe rent arrears?

Should compensation be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions