Published tribunal order
Tenancy Tribunal case 4674084 — Rent arrears at 43B Moire Road, Massey, Auckland 0614
Decided 19 Oct 2023 · Published 19 Oct 2023 · Application 4674084
Landlord favoured
- Rent arrears
Order
- Paul Larsen owes Jing Yu $5,946.44 (“the debt”) being $5,926.00 for rent arrears to Friday 20 October 2023 and the filing fee of $20.00.
- Paul Larsen must pay rent and the debt as follows: a. The next weekly rent in advance of $510.00 must be paid by 5pm on Saturday 21 October 2023 b. The arrears of $5,926.00 must be paid in full by 5pm on Friday 27 October 2023. c. Two weeks rent in advance, a payment of $1,020.00, must be paid by Saturday 28 October 2023.
- Payments will be allocated in the following order: current rent, rent arrears, and the filing fee.
- If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The tenancy at 43B Moire Road, Massey, Auckland 0614 will terminate and the landlord will have immediate possession of the premises. b. The balance of the debt will be payable immediately.
- The filing fee is payable immediately.
Reasons
- Both parties attended the telephone hearing this afternoon.
- The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The tenant wants to repay the debt to avoid immediate termination.
Should a conditional termination order be made?
- Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order.
- The tenant made a proposal to pay off the arrears in a short time. The proposal is incorporated in this order (including payment of 2 week’s rent in advance). While the landlord sought termination this week, a conditional termination order enables the landlord to terminate the tenancy without a further hearing if any of the payments promised by the tenant are not made.
- I am satisfied that the tenant will pay the debt within the period specified in the order and is unlikely to commit any further relevant breach. The tenant is working and says he has money available.
- The conditional termination order will lapse if it is fully complied with. If the tenant breaches the order, the possession order may be enforced for 90 days from the first breach.
Is the tenancy expiring soon?
- The landlord pointed out that the tenancy was for a fixed-term and expires on Saturday 21 October 2023. She requested termination of the tenancy on this day. The landlord said she had given notice to end the tenancy.
- On 3 September 2023, the landlord emailed the tenant about the rent. The landlord said an application had been made to the Tribunal. The email also stated: “So your last day is on 20 October 2023. I am happy if you would like to move out before the date”.
- The landlord sent the tenant a text on 16 October 2023. The text said it was a notice to remedy rent arrears: “I will be terminating your rental contract on 21 October 2023, in accordance with the terms of our agreement.”
- In my view, the landlord is not entitled to possession of the property on expiry of the fixed term. On expiry, the tenancy continues as a periodic tenancy except in the circumstances set out in section 60A(2) of the Residential Tenancies Act 1986. The defined circumstances do not apply. For example, the parties have not agreed to end the tenancy (the tenant’s evidence was that he wishes to continue living there) and no notice has been given which complies with section 50(1)(a) to (b) of the Act. Water
- The landlord claimed water charges, which was not included in the application form. An invoice dated 4 September 2023 was provided, with current and overdue charges totalling $128.66. It is not possible to determine if the overdue charges include fixed charges.
- The landlord also claimed water charges of $50.67 said to be due on 1 November 2023. The invoice was not provided, and the Tribunal does not order payment of water charges before the due date. Filing fee
- The landlord has succeeded in obtaining a conditional termination order. It is appropriate to award the filing fee.