Published tribunal order
Tenancy Tribunal case 4594229 — Rent arrears at Unit/Flat 1, 83 Gloucester Road, Mount Maunganui, Mount
Decided 10 Oct 2023 · Published 10 Oct 2023 · Application 4594229
Landlord favoured
- Rent arrears
Order
- An application for suppression has been made in this case, but the Tribunal makes no orders as neither party has been wholly or substantially successful.
- The tenancy of Gregory Maaka White at Unit/Flat 1, 83 Gloucester Road, Mount Maunganui, Mount Maunganui 3116 is terminated, and possession is granted to Berislav Mate Skokandich, at 11.59pm on Friday 20 October 2023.
- The Bond Centre is to pay the bond of $800.00 (5434364-002) to Berislav Mate Skokandich immediately.
- Gregory Maaka White must pay Berislav Mate Skokandich $2,629.86 immediately, calculated as shown in the table below:
- The application for compensation for damage is withdrawn.
- The application for compensation for rent the landlord alleges he missed out on ($30,200.00) is dismissed.
- The application for exemplary damages is dismissed.
Reasons
- Both parties attended the hearing.
- I first held a hearing on 5 July 2023. I made a conditional termination order because the parties agreed to attend mediation and I allowed the tenant time (10 days) in which to lodge a cross application, which, if successful, might have off-set the amount owing for rent.
- The tenant said today he had recently lodged a cross application, but there is no tenant application before the Tribunal.
- The landlord has applied for termination of the tenancy, rent arrears, refund of the bond, compensation, and exemplary damages. Mediation
- The parties attended mediation on 1 August 2023. The mediator’s report confirms that there were 17 missed payments of rent from week 10 of the tenancy. The rent arrears amount to $3,400.00. The mediator has recorded that Mr White accepted that amount. He confirmed that today.
- There is a dispute about the payment of rent for the first 6 weeks of the tenancy which started on 8 July 2020. The amount in dispute is $1,200.00.
- The landlord claims no payments were made. The tenant produced evidence of payments to the landlord of bond and rent from 21 July 2020 which have not been recorded in the landlord’s rent records.
- I do not find that the landlord’s rent records as presented are reliable. It was only because of the careful reconciliation by the mediator that the correct amount of arrears could be identified.
- I do not find that the landlord has proved a claim for rent arrears for the first 6 weeks of the tenancy. It is probable that the Ministry of Social Development made payments to the landlord that have not been recorded as payments of rent on this tenancy. And it is probable that the tenant made payments as well for part of this period.
- I have made a rent arrears order for $3,400.00 only. The landlord has not proved a claim for additional rent arrears from 8 July 2020.
- A landlord has a duty to keep accurate rent records.
- Because the rent was at least 21 days in arrears on the date the application was filed, the tenancy is terminated - see section 55(1)(a) Residential Tenancies Act 1986 (RTA).
- The tenant admitted that his rent had been in arrears, but he said he always explained the reason for his rent arrears and the landlord accepted it.
- Even if that was the case historically, the landlord does not agree to the tenancy continuing, nor would he agree to a conditional termination order.
- The landlord is entitled to terminate the tenancy because the rent arrears well exceed 21 days. The rent has been in arrears throughout the tenancy. Even if the landlord did not act to terminate the tenancy previously, he is not prevented from doing so now.
- I have delayed the date of possession until 20 October so the tenant can find other accommodation. He remains liable for rent until he vacates the tenancy. Water rates
- The mediator’s order recorded that the tenant accepted liability for water rates of $242.15. He has since paid most of that. Only $9.42 remains outstanding. Repairs
- The landlord sought compensation for the repair of damage. He withdrew that application since he does not yet know whether there is any unrepaired damage. He can make a new application for compensation for any damage once he has possession of the premises. Loss of rent compensation
- The landlord sought $30,200.00 for what he says was loss of rent compensation. He said the tenant prevented him from leasing a second bedroom at the premises.
- This claim cannot succeed. The tenancy agreement does not record that Mr White’s tenancy was limited to one room. But even if it was, the landlord cannot realistically claim that Mr White prevented him from renting a second room either by his conduct or for any other reason.
- The landlord was the person in control here. He is the owner of the premises.
- The landlord could have terminated the tenancy from October or November 2020 when the rent was first in arrears by 21 days, or at any time if he considered the tenant was in breach of the tenancy agreement. He chose not to. But he cannot now claim historic loss of rent compensation when he did not act to stop what he alleges occurred.
- I dismiss this claim. The landlord has not proved any breach by the tenant of the tenancy agreement or of the RTA, nor any other action that would justify compensation being awarded for loss of rent. Exemplary damages
- The landlord alleges that the tenant gave the (sole) key to the premises to another person for 4 weeks allowing that person to use the premises. He claims a loss of rent of $800.00 for that period and exemplary damages.
- Exemplary damages are awarded at the Tribunal’s discretion when one party proves that the other has committed a defined unlawful act.
- Both parties produced evidence from the person who lived at the premises for 4 weeks. Mr White produced a letter that person had written; the landlord produced text messages.
- The evidence is totally contradictory. That person both supports the tenant’s version of events (that the tenant did not know the third person but agreed to let him stay so he could use the address for WINZ and for his car registration) and the landlord’s version (that Mr White’s behaviour drove the third person out).
- The Tribunal does not find the evidence from the third person to be reliable.
- The narrative is confused and confusing. But the tenant did not commit any unlawful act. For that reason, the Tribunal cannot award exemplary damages.
- Even if the tenant agreed to the third person residing at the premises for 4 weeks (which seems unlikely and is disputed by Mr White) that would not necessarily be a breach of the tenancy agreement. And if it was it was a breach it is not one that the Tribunal would have considered warranted an award of compensation.
- This is a case where the landlord is largely the author of his own misfortune. He could have terminated the tenancy at any time from around October 2020. He cannot realistically expect the Tribunal to grant him the relief he seeks now some 3 years after he had the opportunity to end the tenancy.
- I dismiss the application for exemplary damages and for compensation for the 4-week period that another person allegedly stayed at the premises. Result
- The tenancy is terminated because the rent is more than 21 days in arrears and was so at the date of the application. Possession is granted to the landlord on 20 October 2023.
- The tenant will pay the landlord $2,629.86 comprising rent arrears, water rates and the filing fee, less the bond.
- The bond will be paid to the landlord.
- The landlord’s claims for additional rent (6 weeks); loss of rent compensation ($30,200.00); other lost rent (4 weeks); and exemplary damages are dismissed. Name suppression
- Both parties applied for a name suppression order. The Tribunal makes no name suppression orders as neither party has been wholly or substantially successful – see section 95A RTA.