What was the outcome of Tenancy Tribunal case 4595399?

The tribunal order states: The landlord’s claims are dismissed.

How much money was awarded in case 4595399?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4595399?

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

Where can I read the official tribunal order for case 4595399?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9174435-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4595399?

The tribunal order states: The landlord’s claims are dismissed.

How much money was awarded in case 4595399?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4595399?

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

Where can I read the official tribunal order for case 4595399?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9174435-Tenancy_Tribunal_Order.pdf.

Unit/Flat 903, 15 Union Street, Auckland Central, Auckland Tenancy Tribunal Case 4595399 — Rent arrears

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Reasons

Only the landlord attended the hearing, represented by Ms Yu and Mr Qiu. There was no appearance by the tenant.

The tenant applied for an adjournment two days prior to the hearing on the basis “I have work and cannot take any time off” but did not provide any evidence in support of their application.

I reviewed the file and noted that the notice of hearing had been sent to the parties on 30 June 2023. The tenant has had ample time to make arrangements to attend the hearing. If the tenant had attempted to get time off work but their request had been refused by their employer, then they should have provided that information to the Tribunal.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations. The landlord says that the tenant has breached their obligations because: a. They have refused to allow the landlord to enter the property to carry out an inspection; and b. There are additional people living in the tenancy, in breach of the tenancy agreement which provides that only one person is to reside in the tenancy.

The landlord also advised at the hearing that the rent is in arrears by one week but I do not have any application before me concerning rent arrears and so am not in a position to make any orders in respect of rent arrears.

The landlord noted that they have previously applied to the Tribunal for an order for termination of the tenancy because the rent was more than 21 days in arrears (4570569). A conditional termination was made in that case. The landlord advises that the tenant met the terms of the conditional order and paid the arrears, but that the rent has since fallen into arrears again. Evidence

This a claim by the landlord. The landlord bears the onus of proving their claim to the civil standard, that is, on the balance of probabilities.

In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.

This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.

Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law

It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.

The allegations against the tenant in this case are serious and the remedy sought is termination. Robust evidence is required for the landlord to prove their claim on the balance of probabilities.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.

Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so. Has there been a breach/breaches of the tenant’s obligations? Failure to consent to inspections

The tenancy began on 26 August 2022. The landlord has been trying to access the property to conduct an inspection since 15 May 2023. The landlord produced correspondence with the tenant showing attempts to arrange an inspection without success.

The landlord served a 14 day notice on 6 June 2023 in respect of this alleged breach.

Since that date there has been further correspondence between the parties regarding an inspection but the tenant has insisted that inspections take place on the weekend, and when the landlord has agreed and scheduled a weekend inspection, has then postponed that inspection for various reasons (on one occasion due to contracting Covid-19 and needing to isolate and on another due to family visiting from Australia due to an emergency). As a result an inspection has still not taken place.

I appreciate that the landlord has attempted to arrange an inspection on a date and at a time that is suitable to the tenant. It is common for landlords and tenants to schedule inspections at a mutually convenient time. However the tenant’s consent to inspections is not required and by failing to provide consent the tenant is not in breach of the Tenancy Agreement or the Residential Tenancies Act 1986.

The landlord has a right of entry for the purpose of inspecting the premises in accordance with 48(2)(b) of the Residential Tenancies Act 1986, which provides that the landlord may enter the premises:

The tenant should be aware that if they do not arrange a date and time with the landlord, the landlord may choose to conduct an inspection in accordance with 48(2)(b) without further reference to them.

If the landlord has any concerns about conducting an inspection in accordance with 48(2)(b) I encourage them to contact Tenancy Services for advice. Additional people living in the property

The landlord alleges that there are additional people living at the property, in breach of the tenancy agreement. The tenancy agreement specifies that only one person may live at the property (the named tenant).

The property managers explained that on five or six occasions when they have (unsuccessfully) attempted to conduct an inspection they have heard children behind the door at the property and think it likely that additional people are living there.

The landlord also produced the following emails from the building manager: a. 1 May 2023 – advising that a female suspected to be living at the apartment with the tenant has been sighted trying to break into various mailboxes (including still CCTV images); b. 29 June 2023 – advising that the same female and the tenant have been using emergency doors and jumping the gate (including still CCTV images); c. 5 July 2023 – advising that same female appears to be living at the tenancy address but has previously been trespassed from the apartment building.

The landlord has served three 14 day notices regarding these alleged breaches, on 5 June 2023, 29 June 2023 and 10 July 2023. The third notice had still not expired at the date of the hearing

Having carefully considered all of the evidence before me I am not persuaded that the landlord has proved, on the balance of probabilities, that there are additional people living at the apartment.

Tenants are entitled to have guests come to visit them and to stay from time to time. There was nothing in the evidence presented to the Tribunal at the hearing that tends to prove that other people are living in, as opposed to visiting, the apartment. The only evidence before me is that children may have been at the apartment on various occasions (but those children were not in fact seen) and that a female who has been previously trespassed from the property has been sighted at the property, on one occasion in the company of the tenant. Clearly the building manager suspects that the female is living in the tenancy, but the basis for those suspicions was not provided in the evidence before me.

I note that some of the behaviour described in the emails from the building manager (as recorded in paragraph 23 above) might potentially amount to breaches of the tenant’s various other obligations but I am only able to deal with the alleged breaches before me. Outcome

As the landlord has not proved that the tenant is in breach of their obligations it follows that there is no basis on which to terminate the tenancy. The landlord’s claims are therefore dismissed.

Although the landlord sought an order for name suppression I have not made any such order as the landlord has not been the successful party.

Reasons

Only the landlord attended the hearing, represented by Ms Yu and Mr Qiu. There was no appearance by the tenant.

The tenant applied for an adjournment two days prior to the hearing on the basis “I have work and cannot take any time off” but did not provide any evidence in support of their application.

This a claim by the landlord. The landlord bears the onus of proving their claim to the civil standard, that is, on the balance of probabilities.

The allegations against the tenant in this case are serious and the remedy sought is termination. Robust evidence is required for the landlord to prove their claim on the balance of probabilities.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.

The landlord served a 14 day notice on 6 June 2023 in respect of this alleged breach.

If the landlord has any concerns about conducting an inspection in accordance with 48(2)(b) I encourage them to contact Tenancy Services for advice. Additional people living in the property

The landlord has served three 14 day notices regarding these alleged breaches, on 5 June 2023, 29 June 2023 and 10 July 2023. The third notice had still not expired at the date of the hearing

Having carefully considered all of the evidence before me I am not persuaded that the landlord has proved, on the balance of probabilities, that there are additional people living at the apartment.

As the landlord has not proved that the tenant is in breach of their obligations it follows that there is no basis on which to terminate the tenancy. The landlord’s claims are therefore dismissed.

Although the landlord sought an order for name suppression I have not made any such order as the landlord has not been the successful party.

Tenancy Tribunal case 4595399 — Rent arrears at Unit/Flat 903, 15 Union Street, Auckland Central, Auckland

At a glance

Tenancy Tribunal case 4595399 — Rent arrears at Unit/Flat 903, 15 Union Street, Auckland Central, Auckland

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions