What was the outcome of Tenancy Tribunal case 4698997?

The tribunal order states: The Bond Centre is to pay $108.57 from the bond of $3,040.00 (3120920-015)

How much money was awarded in case 4698997?

Utility Bill: $108.57 awarded to landlord

What type of tenancy dispute was case 4698997?

The dispute type was not classified.

Where can I read the official tribunal order for case 4698997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10485081-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4698997?

The tribunal order states: The Bond Centre is to pay $108.57 from the bond of $3,040.00 (3120920-015)

How much money was awarded in case 4698997?

Utility Bill: $108.57 awarded to landlord

What type of tenancy dispute was case 4698997?

The dispute type was not classified.

Where can I read the official tribunal order for case 4698997?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10485081-Tribunal_Order.pdf.

Unit/Flat 2, 40 Epsom Avenue, Epsom, Auckland 1023 Tenancy Tribunal Case 4698997 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4698997 — net $108.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Utility bill	$108.57	Utility bill
Net award	$108.57
Total payable by Tenant to Landlord	$108.57

Claims and awards in Tenancy Tribunal application 4698997 — net $108.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Utility bill	$108.57	Utility bill
Net award	$108.57
Total payable by Tenant to Landlord	$108.57

Order

The Bond Centre is to pay $108.57 from the bond of $3,040.00 (3120920-015) to the landlord and the remainder of $2931.43 is to be refunded to Thouthanith Prok immediately.
Thouthanith Prok is to pay Barfoot and Thompson limited the sum of $108.57 as set out below:
The landlord application for rent arrears, filing fee and exemplary damages against Ms Prok are dismissed.

Reasons

Both parties attended the hearing. Background:
The tenant moved into the property in December 2022. There were 4 tenants residing at the property at the time Ms Prok moved in. Ms Prok took over the tenancy from the previous head tenant on 27 March 2023, entered into a periodic tenancy agreement with the landlord in her name alone.
At this time another tenant, Jordon Antonia-Rooney (“Jordon”) was also residing at the property as a subtenant.
On 18 April 2023 Ms Prok sent Jordon a Flat sharing agreement between herself as head tenant and Jordon as a subtenant. The agreement covered the following conditions: - The amount of weekly rent, utilities bills, bond payable, - Terminate with 28 days’ notice by either party in writing - No pet policy
Jordon never signed the flat sharing agreement.
On 29 July 2023 Ms Prok served the landlord with a 28-day notice to terminate the tenancy. The last day of the tenancy was to be 26 August 2023.
The primary reason Ms Prok served the termination notice was the difficulties she was having with Jordon such as missed and late rent payments. Jordon had also moved her boyfriend and a dog into the property without consent. These were breaches of the tenancy agreement Ms Prok had with the landlord.
Ms Prok emailed Jordon on 29 July 2023 giving her 28 days-notice that she had terminated the tenancy and when the end date was for her to move.
From 3 August 2023 Jordon stopped paying rent and she, her boyfriend and the dog did not leave the property on 26 August 2023.
On 24 August 2023, the landlord was advised by Ms Prok that Jordon had refused to move out of the property. Ms Prok attempted to talk to Jordon to no avail.
On 27 August 2023 Ms Prok went to the police to seek assistance with trespassing Jordon from the property. Ms Prok advised the landlord of her actions in trying to remove Jordon from the property.
Ms Stubbs, who is the head of property management at Barfoot and Thompson, Mount Eden, (B&T) and Ms Wei, the property manager of Ms Prok, were involved in the discussions with Ms Prok about Jordon being removed from the property.
On 29 August 2023 Ms Stubbs asked Ms Prok not to involve the police or trespass Jordon from the property and asked for an email explaining why she had given Jordan notice.
On 30 August 2023 Ms Prok went back to the police for an update on the action to trespass Jordon. Ms Stubbs asked Ms Prok again not to involve the police or trespass Jordon, as B&T were looking for alternative accommodation options for Jordon and asked that she be able to stay at the property until this has happened . Ms Prok refused to consent to allow Jordon to stay on in the property. Jordon was not paying rent at this time and Ms Prok may become liable for her rent arrears.
No solution was reached regarding Jordon and the end of the tenancy. So, Ms Prok served B&T another 28-day notice to terminate the tenancy. The end date was 28 September 2023. Ms Prok vacated the property on 28 September 2023.
At the end of the tenancy, on 28 September 2023, Ms Prok had ensured that all the rent and utility bills were paid.
Prior to vacating the property Ms Prok had been in communication with B & T telling them that she will not be responsible for rent after 28 September 2023 and that the power and internet would be cut off on that final day of the tenancy.
B & T carried out a final inspection at the property on 28 September 2023 and found Jordon and her boyfriend were still living in the downstairs room.
B & T and Ms Prok were in contact over a few minor issues relating to the final inspection. Ms Prok says the landlord did not mention Jordon during these conversations.
The relationship between Jordon and Ms Prok was very difficult and Jordon had refused to speak to Ms Prok.
B & T hand delivered a letter to Jordon on 29 September 2023 asking her to vacate as the head tenant had terminated her tenancy on the property.
Ms Prok was unable to return all the keys to the landlord at the end of her tenancy as Jordon refused to give her keys to Ms Prok.
On 2 October 2023 B & T filed an application with Tenancy Services for possession of the property after termination, exemplary damages for remaining at the property after termination, and rent arrears. Ms Prok was noted as the Respondent, as the tenancy was between Ms Prok and B & T. Jordon was named in the application.
Jordon then filed a cross application against B & T on 9 October 2023.
Jordon vacated the property on 30 October 2023 and returned one set of keys to B & T. Landlord application:
The landlord initially applied for a possession order however the subtenant did move out and therefore the possession order is not required.
The landlord is seeking rent to cover the period from 28 September 2023 until 30 October 2023. The landlord is claiming $3582.86 in rent arrears to 30 October 2023. In addition, exemplary damages, $108.57 for utility bills, filing fee and refund of the bond. Rent arrears and utility bills:
The landlord has applied for rent arrears and has provided rent records which show the rent arrears as of 30 October 2023. There was $108.57 outstanding for utility bills. Ms Prok accepts that the $108.57 is unpaid and does not dispute liability for this sum.
There is no dispute that Jordon remained at the property after Ms Prok terminated the tenancy and left on 28 September 2023.
I am satisfied that the landlord has proven their claim that there are rent arrears of $3582.86 owing as a result of Jordon remaining at the property after the end of the tenancy.
The issue for me to determine is whether it is Ms Prok who is liable for the rent arrears. The law - Residential Tenancies Act 1986:
Who is a tenant, what is a tenancy and a tenancy agreement under the Residential Tenancies Act 1986, (RTA), ( see section 2 RTA)?
A tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.
A tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises; and, where appropriate, includes a former tenancy agreement and any variation of a tenancy agreement.
A tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement; and, where appropriate, includes— -(a) a prospective tenant; and -(b) a former tenant; and -(c) a lawful successor in title of a tenant to the premises; and -(d) the personal representative of a deceased tenant; and -(e) an agent of a tenant
There can be no dispute that Ms Prok was a tenant under a tenancy agreement with the landlord. Jordon did not have a tenancy agreement with the landlord and was therefore a subtenant of Ms Prok’s.
What is the effect of a subtenancy on the head tenant who has the contractual relationship with the landlord? Effect on subtenancy of termination of head tenancy (see s57 RTA) (1) Except as provided in subsections (2) and (3), where any premises are subject to a tenancy and 1 or more subtenancies, on the termination of the tenancy each subtenancy shall be deemed to be terminated. (2) Where— (a)the landlord has consented to a subletting by the tenant to a subtenant ; and (b)the landlord is giving to the tenant notice to terminate the tenancy in accordance with section 51 or section 52,— the landlord may, on the same date, give a copy of the notice to the subtenant, in which case the notice shall have effect to terminate the subtenancy on the date on which the tenancy will terminate. (3) Subject to subsection (2), where the landlord gives to the tenant notice to terminate the tenancy in accordance with section 51 or section 52, the following provisions shall apply in respect of each subtenancy to which the landlord has consented: a) the subtenancy shall continue notwithstanding the giving or expiry of that notice: b) for the purposes of sections 15, 21A, and 43, the landlord under the tenancy shall be deemed to have acquired the sublandlord’s interest under the subtenancy, and the provisions of those sections, with any necessary modifications, shall apply accordingly: c) the landlord under the tenancy shall have the same rights (if any) as the sublandlord had under the subtenancy agreement or this Act to give notice terminating the subtenancy or to apply to the Tribunal for an order terminating the subtenancy or for an order for possession of the premises: d) if, on the expiry of the notice given in respect of the tenancy, the subtenancy is still subsisting, the subtenancy shall be deemed to be a tenancy granted by the landlord to the subtenant.
When the tenant, Ms Prok, gave 28 days’ notice to terminate the tenancy, the subtenancy was deemed to have been terminated also. Section 57 RTA Subsection (2) & (3) are not applicable in this case.
What happens where the Tenant remains in possession after termination of the tenancy. S60 RTA states: (1) Where a tenant remains in occupation of the premises after the tenancy has terminated or has been terminated, all the obligations of the tenant shall continue in force as if the tenancy were still subsisting until such time as the tenant ceases to occupy the premises. (2) If the landlord permits the tenant to remain in the premises for more than 90 days after the tenancy has terminated or has been terminated, without obtaining a possession order, or for more than 90 days after obtaining a possession order, the landlord shall be deemed to have granted, and the tenant shall be deemed to have accepted, as from the date on which that period of 90 days expired, a periodic tenancy of the premises on the same terms and conditions as pertained to the original tenancy immediately before its termination. (3) The landlord shall not be taken to have permitted the tenant to remain in possession, or to have given up the right to proceed under this Act in respect of any breach of the tenant’s obligations, merely because the landlord accepts payment of rent in respect of any period after the tenancy has been terminated.
The central issue for me to determine is whether Ms Prok is liable for the rent from the time she vacated the premises on 28 September until the time the subtenant left on 30 October 2023.
On the face of s60 RTA Ms Prok should be liable for the rent arrears if a subtenant remains in the property after the termination of the tenancy.
Ms Prok argues that she had the tenancy with B & T and had complied with the tenancy agreement and terminated the tenancy appropriately with the required notice provisions.
Ms Prok states that she was the only “tenant” in the property and that she has left on the specified date of the termination. The person who remained in possession of the property was Jordon, whom Ms Prok claims was a squatter after the tenancy terminated. Ms Prok states that if Jordon remains in the property after the end of the tenancy as a squatter, that does not amount to Ms Prok, as a tenant, remaining in “occupation” of the premises. (See s60 RTA).
It follows, says Ms Prok that she is not liable for Jordon remaining in the property nor for the rent arrears and exemplary damages.
Ms Prok states that the flatting agreement ended at the end of the tenancy and Jordon no longer had Ms Prok permission to remain in the property. This is supported says Ms Prok by her attempts to get police assistance to trespass Jordon from the property.
Ms Prok only ceased her attempts to remove Jordon from the property after Ms Stubbs from B & T asked her not to involve the police or trespass Jordon.
Ms Prok maintains that she quit the premises, and so there cannot be any ongoing obligation to pay rent beyond 28 September 2023, nor was there any unlawful act committed which could give rise to exemplary damages.
Alternatively Ms Prok argues that if the Tribunal finds that s60(1) is satisfied and Ms Prok did remain in occupation of the premises, or that she failed to quit the premises under s 40(1) (e), then this is a case where the Tribunal’s s 85(2) jurisdiction to determine cases based on the “substantial merits and justice” of the case ought to be exercised.
To support this view Ms Prok says this is a situation largely of B & T making. B & T were aware of the issues with Jordon and her refusal to leave the property. Ms Prok sought police assistance to remove and trespass Jordon. B & T requested she not pursue this action.
B & T now seeks to rely on Ms Prok’s failure to remove Jordon as the basis for claiming damages and rent arrears. Ms Prok says ordering her to pay rent and damages due to Jordon remaining at the property beyond 28 September 2023 would be against the “substantial merits and justice” of the case.
Ms Prok continues by claiming that B & T did not take reasonable steps to limit or mitigate the damage or loss from any breach. To support this view, she relies on B & T request not to involve the police to remove Jordon and taking no steps to serve her notice until after the tenancy had ended.
The landlord view is that B & T had a tenancy agreement with Ms Prok and not the subtenant. As head tenant, Ms Prok had an obligation to ensure that all flatmates had vacated the property on 28 September 2023. Jordon remained in the property after the tenancy ended and so Ms Prok should pay the rent arrears and be responsible for breaching s 40 (1) ( e ) RTA and be subject to exemplary damages.
I acknowledge and accept that the landlord is technically correct in that ultimately Ms Prok could be liable for rent arrears if not all the flatmates vacate the property at the end of the tenancy.
However, given a number of factors, I do not find that Ms Prok is responsible for the rent arrears and is not in breach of s40 of the RTA: a) Ms Prok paid all outstanding rent payments and most of the utility bills at the end of the tenancy. Ms Prok advised that she had paid Jordan’s share of these invoices as well as her own. There is one small invoice owing for $108.57 that I am awarding the landlord and Ms Prok has agreed to pay. b) Ms Prok took legal advice and then went to the police on two occasions to obtain assistance to remove Jordon from the property at the end of the tenancy. The only reason that Ms Prok did not continue with this action to remove Jordon was at the request of B & T. Ms Prok had been told that Jordon was suicidal, and they ( B & T) were helping with alternative accommodation options. c) By desisting with legal recourse to remove Jordon at the request of B & T, cannot indicate to any party that Ms Prok was consenting to Jordon remaining at the property. d) B & T were advised throughout the termination period that Jordon was refusing to leave the property. While is accepted that B & T did not have a contractual relationship with Jordon, they were aware throughout the process of the difficulties Ms Prok was having. In fact, B & T were dealing directly with Jordon’s mother regarding the termination of the tenancy. It was the concern expressed by Jordon’s mother to B & T that led them to ask Ms Prok to desist with the removal and trespass action. e) Given the involvement of B & T in dealing with Jordon’s mother directly, conveying their concern for Jordon and the effect trespass and removal would have on her, changed the obligation on Ms Prok. f) I find that Ms Prok is not responsible for the rent arrears incurred by a subtenant remaining at the property without her consent. B & T hindered Ms Prok’s attempts to remove a subtenant from the property at the end of the tenancy, therefore they must bear the cost of their actions. g) It follows that I do not find that Ms Prok has breached the RTA.
The landlord’s claim for rent arrears and exemplary damages against Ms Prok are dismissed.
The bond is to be split as set out in paragraph 2 of the Order .
As the landlord has not been successful in their application, I am not reimbursing the filing fee.

Tenancy Tribunal case 4698997 — Tenancy dispute at Unit/Flat 2, 40 Epsom Avenue, Epsom, Auckland 1023

At a glance

Tenancy Tribunal case 4698997 — Tenancy dispute at Unit/Flat 2, 40 Epsom Avenue, Epsom, Auckland 1023

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions