What was the outcome of Tenancy Tribunal case 4748691?

The tribunal order states: Kimberley Snider and Patrice Baillargeon must pay Cotswold Property

How much money was awarded in case 4748691?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4748691?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4748691?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10039541-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4748691?

The tribunal order states: Kimberley Snider and Patrice Baillargeon must pay Cotswold Property

How much money was awarded in case 4748691?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4748691?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4748691?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10039541-Tribunal_Order.pdf.

Unit/Flat 1B, 22 Fleet Street, Eden Terrace, Auckland 1021 Tenancy Tribunal Case 4748691 — Rent arrears

Order

Kimberley Snider and Patrice Baillargeon must pay Cotswold Property Management Limited Corli Viljoen $2,040.00 from the bond being rent arrears.
The Bond Centre is to pay the bond of $3,400.00 (6336287-008) immediately apportioned as follows: Cotswold Property Management Limited Corli Viljoen: $2,040.00 Kimberley Snider and Patrice Baillargeon: $1,360.00

Reasons

Both parties attended the video hearing. Corli Viljoen and Kayla Williams represented the landlord for the first hearing. David Vinsen attended the final hearing with them.
The tenant application seeks the return of their bond. This is a fixed-term tenancy that was contracted to 31 January 2024. The tenants have already left the premises, and the country. They consider they had ended the contract with no liabilities and the bond should be released to them.
The landlord has applied for rent arrears for the fixed-term period ending 31 January 2024. It waived any claim for expenses relating to the break of the fixed-term. The sum sought was $7,040.00.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
There was a change of property manager, from LVG Property Management as at signing, to Cotswold Property Management. This change was notified to the tenants on 13 September 2023. These Tribunal applications pertain to the second property manager tenure.

Were the tenants entitled to terminate their fixed-term early?

There had been prior problems for the tenants due to noise from neighbours. This issue was noise as recounted in the email to the landlord from the tenant on 13 October 2023 that included a request to vary the tenancy agreement to end on 6 December 2023 – some 9.5 weeks away. This end date was later formalised by tenant notice on 3 November 2023.
There followed a series of communication between the tenants and landlord but the result was that the end date variation as proposed by the tenants was not agreed.
On 20 October 2023 the tenants wrote to the landlord:
This stance relied on the following advice from Tenancy Services (the highlighted text was by the tenants):
The tenants advised on 6 November 2023 that they would facilitate/cooperate with any viewings. The landlord informed the tenants that same day:
The tenant claimed their notice to terminate was permitted due to the change in agent, and as advised by Tenancy Services (above). If this was so, their argument that they had no rent liability beyond 6 December 2023 would be compelling. They rely on their belief the change in landlord made the tenancy agreement “null and void”. I do not share this belief.
Firstly, s 2 RTA defines a landlord as: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; and (b) a former landlord; and (c) a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord
The definition of a landlord provides for multiple landlords, including an agent of the landlord, with a tenancy agreement.
Secondly, the claim ignores the specific provisions of the Residential Tenancies Act 1986 (“RTA”) that are applicable in a fixed-term tenancy as here. This Act is considered lex specialis regarding residential tenancies. Lex specialis is a legal maxim according to which specific laws or rules are given priority over general rules. Within the Act, the same principle applies as the specific will take precedence over the general.
The appropriate section of the RTA that provides relief such as should have been sought by the tenants is found in in section 66. Section 66(1) states, regarding the reduction or termination of fixed-term tenancy: (1) On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
It would appear that an application for an order reducing the fixed-term for any noise/neighbour issues, if that justified such an order, should have been made by the tenants. Alternatively, while it is not my view that a change in agent would meet the threshold of an unforeseen circumstance, any degradation in the subsequent performance of the agent that diminished the tenants’ enjoyment of the tenancy, might, although there is no suggestion of that here.
I do not find the tenants had a right to unilaterally terminate their tenancy due to the change in agent as they claimed. There was no unforeseen change in their circumstances due to this. A change in agent during a tenancy is not unusual. The tenancy agreement here continued as did their fixed-term liabilities, including for rent.
Having determined that, I must now consider the actions of the landlord during and after the notice period.

Did the landlord mitigate their loss?

Section 49 RTA requires where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
When the breach is a tenant ending a fixed-term, and it is not abandonment such as here 1 , it is expected the landlord take prompt action to establish a new tenancy. The tenant is liable for reasonable costs associated with this. 1 Section 61 61 Abandonment of premises (3) A tenant who abandons the premises shall, notwithstanding any rule of law to the contrary, be liable to pay the rent for any period up to and including, but not after, the following date: (b) in the case of a fixed-term tenancy,—
The landlord provided a written submission. It states in one part:
The landlord linked acceptance of break costs to commencement of reletting activity. Given the statutory provision to recover such costs I have some concerns regards such a requirement before commencing appropriate reletting activities.
I note the landlord’s confirmation to the tenants on 20 October 2023 that the process is for it “to find a suitable replacement tenant as soon as possible.” The delays in commencing are a joint responsibility between the parties.
I have taken the tenant notice to have been served effective 3 November 2023, to end on 6 December 2023. The tenants’ stance regarding the contract ending due to the change in agent, and limiting any liability for break costs, clouds in my mind what date might reasonably have been expected to see landlord activity regarding reletting. Attempts to agree prior failed, seemingly for the inclusion of additional terms that were not acceptable to one party.
I was puzzled when it was confirmed no active marketing commenced until on or around 9 January 2024. While the landlord stated the premises were advised internally as available, I do not consider that proven, nor sufficient to absolve the obligations of s 49.
It appears the delay in active marketing was at the instruction of the owner who was overseas at the time. I was told by the landlord the owner wanted to inspect the premises before any reletting activity. The tenant submitted the landlord was of some mind to occupy the premises themselves. I have no evidence of that but I would consider such a plan of the owner to move back, if planned around the fixed-term period, would have potentially exposed the tenants to further liability. It would not have been reasonable or practical to have expected a landlord instigated short-term tenancy for the remaining period of the fixed-term. An assignment was open to the tenants to arrange.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are (i) the date of the expiry of the term; or (ii) the date of commencement of a new tenancy of the premises,— circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case. I have considered this within the determination.
I have considered the delay in advertising the premises until around 9 January 2024. The premises was not abandoned and to award the full rent until the end of the fixed-term, as sought by the landlord, given what I consider to be a landlord failure to mitigate the loss, would be inequitable.

What is the rent liability?

The tenants had no legal basis to terminate the tenancy without liability, as they attempted to do. While I accept the messaging on the Tenancy Services website might have been confusing such advice does not bind me, nor do I discount that the savvy tenants would have been aware of other information available regarding how a fixed-term tenancy can end.
At the hearing the landlord offered a reduced rent amount to reflect the delays in marketing as a basis for a settlement. This was not accepted by the tenant.
Balancing the tenant liability and the landlord’s failure to appropriately attempt to reletting the premises, I consider the rent liability beyond the rent paid to 6 December 2023 to be a further 3/5 th of the bond, being $2,040.00. This is awarded to the landlord from the bond and the balance of the bond is returned to the tenants ($1,360.00).
The landlord advised the premises still remained vacant at the time of the final hearing. Such a delay does not mean active marketing during the last two months of 2023 would have produced the same result. Application filing fee
I do not consider either party has enjoyed sufficient success to justify any order regarding their application filing fee. Each party is to carry their own cost. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
As neither party has been substantially successful, no suppression is ordered.

Tenancy Tribunal case 4748691 — Rent arrears at Unit/Flat 1B, 22 Fleet Street, Eden Terrace, Auckland 1021

At a glance

Tenancy Tribunal case 4748691 — Rent arrears at Unit/Flat 1B, 22 Fleet Street, Eden Terrace, Auckland 1021

At a glance

Claims & awards

Order

Reasons

Were the tenants entitled to terminate their fixed-term early?

Did the landlord mitigate their loss?

What is the rent liability?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Were the tenants entitled to terminate their fixed-term early?

Did the landlord mitigate their loss?

What is the rent liability?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions