What was the outcome of Tenancy Tribunal case 4753536?

The tribunal order states: The landlord and tenant applications are dismissed.

How much money was awarded in case 4753536?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4753536?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4753536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9833733-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4753536?

The tribunal order states: The landlord and tenant applications are dismissed.

How much money was awarded in case 4753536?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4753536?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4753536?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9833733-Tenancy_Tribunal_Order.pdf.

Unit/Flat Apartment 2, 715 Frankton Road, Queenstown, Tenancy Tribunal Case 4753536 — Rent arrears

Order

The landlord and tenant applications are dismissed.

Reasons

Both parties attended this hearing on 12 January 2024.
The landlord was represented by Jared Palmer and Nicola Hall.
This tenancy relates to premises at Apartment 2, 715 Frankton Road, Queenstown (“the premises”).
There is a dispute between the parties as to when the various fixed term tenancies commenced and ended.
The first tenancy agreement commenced on 25 February 2023 and was to be a fixed term ending on 12 July 2023 (“the first tenancy agreement”). The tenant parties to the first tenancy agreement were Maxwell Cady, Shira Feifer, Jack Hayes and Victoria Allen.
The second tenancy agreement commenced on 13 July 2023 and was to be for a fixed term ending 17 December 2023 (the second tenancy agreement”). The tenant parties to the second tenancy agreement were Jack Hayes, Victoria Allen, Frederick Holt and Nicole Samson-Kapp.
The third tenancy agreement commenced on 19 September 2023 and was to be for a fixed term ending on 17 December 2023 (“the third tenancy agreement”). The tenant parties to the third tenancy agreement were Edward Smith-Uchotski, Nicole Harkness, Victoria Allen and Jack Hayes.
The tenants to the third tenancy agreement have applied to the Tribunal; • To release the tenants from their fixed term tenancy. • For compensation for the landlord reneging on an agreement to release the tenants from their fixed term tenancy. • Claiming that the landlord provided an invalid notice of rent increase. • Exemplary damages where available. • Release of the bond.
The landlord has applied for rent arrears, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The hearing and the arrangement between the parties has been complicated by the landlord entering into a new fixed term tenancy every time that there was a partial change of tenant, when the more appropriate course would have been to simply vary the original agreement.
The landlord has provided the tenants with a “Change of tenant” form to sign. That document records that the parties should “Fill out this form to notify Tenancy Services of a change of tenant within an existing tenancy that is continuing” (the emphasis is mine). The landlord explained that the reason for entering into new tenancy agreements where tenants change, appeared to simply be the this is “how they have always done it”. A change to this methodology in the future may assist both landlord and tenant parties. Tenant Claims Fixed term tenancy reduction
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986 (“RTA”), which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances. b. the change was unforeseen. c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced. d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
The Tribunal has held that it cannot reduce the term of a fixed-term tenancy on the application of one of several co-tenants (Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
The reduction sought is reasonably modest. The tenants Smith-Uchotski and Harkness seek to be released 6 December 2023 and the tenants Hayes and Allen seek to be released on 12 December 2023.
In this case, I have not been provided with clear evidence by the tenants that there was an unforeseen change in circumstances as is required by the RTA. Invalid notice of termination
The tenants say that the notice to terminate the third fixed term tenancy was defective as it did not comply with the formal notice requirements set out in s.51 RTA.
In response, the landlord says that the third tenancy agreement was a short term fixed agreement, as it was for 90 days or less.
Section 7 RTA provides that the notice provisions in s.51 shall not apply to a tenancy for a fixed term of not more than 90 days. But that section goes onto say that it will only apply if, before the commencement of the tenancy, the parties agree in writing that the tenancy will not be extended or renewed to give a total length of the term in excess of 90 days.
The third tenancy agreement does not contain a clause recording that the term is not to be extended or renewed. Where a landlord wishes to invoke a term such as this, the courts have provided that the term must be strictly construed against the landlord. There was no written agreement that the tenancy would not be extended or renewed. The landlord cannot therefore rely on the restrictive provision of s.7 RTA to avoid the notice requirements in s.51 RTA. I find that no valid notice has been given.

Did the landlord agree to allow for the early release of the tenants?

The tenants say that they told the landlord that they wished to end the fixed term tenancy early. They met with the landlord and the landlord suggested that they could “break” the fixed term on a per room basis. The idea being that if one couple left the tenancy early the remaining tenants would remain responsible for half of the rent.
The tenants Harkness and Smith-Uchotski left on 6 December 2023 and the tenants Allen and Hayes left on 12 December 2023.
The tenants provided a transcript of a meeting with the landlord. The transcript is not complete and there are parts of the transcript where what has been said is recorded as being “ inaudible.” The best that can be said from the transcript of the meeting is that no formal agreement to end the tenancy early was reached by the parties.
The application by the tenants would require evidence of the landlord agreeing to the early termination of the fixed term tenancy. The onus of proving this is with the tenants. I am not convinced in the circumstances that it is more likely than not that the landlord agreed to the “room by room” early termination. Rental Increase
The tenants claim that the landlord has increased the rent. It became clear during the hearing that the rent increase discussed was not implemented by the landlord and the claim is accordingly dismissed. The same outcome is attached to the tenant market rent claim for identical reasons. Landlord claims

How much is owed for rent ?

The landlord says that the tenancy ended on 17 December 2023. The landlord provided rent records which prove the amount owing at the end of the tenancy was $1,568.70.
The tenant’s did not dispute the calculation of the rent arrears, but obviously dispute any liability for that sum.
Section 85 RTA provides that subject to the provisions of the Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure a fair and expeditious resolution of disputes between landlords and tenants .
The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
The High Court in Ziki Investments ( Properties) Limited v McDonald HC AK CIV 2008-404-0038 considered the application of s.85 RTA by the Tribunal and held; “Section 85(2) states specifically that each dispute shall be determined. according to the general principles of law relating to the matter.” Significantly, the reference to determining in accordance with the substantial merits and justice comes after the reference to determining the dispute according to the general principles of law. The overarching application of those general principles is not undermined by the provision that the Tribunal is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. This simply means that technical requirements such as matters of form or time, may not be strictly applied. In this the subsection indicates that general principles of law should be interpreted or applied consistently with the merits and justice of the case where possible. Section 85(2) must also be read with s 85(1), which provides that the Tribunal should exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes. Section 85(2) does not therefore give the Tribunal a carte blanche to decide the case on its perception of merits and justice. However, it can be an aid to interpretation.”
In considering the evidence in this matter and taking the requirements of s.85 into account, the evidence shows that the landlord entered into new fixed term tenancies every time there is a change of tenants, when the more appropriate course would be a variation of the original fixed term tenancy agreement.
As the s. 7 RTA requirement to record in writing that the tenancy will not be extended or renewed has not been met, the landlord cannot rely on that. The landlord’s notice to terminate is therefore not valid. However, this is a tenant application for a reduction of the term of the tenancy. Was there an unforeseen change in circumstances? No.
But in the overall circumstances (multiple new tenancy agreements for short term tenancies when there should simply have been variations of the initial agreement - invalid notice causing confusion to the tenants) this case falls comfortably within the application of s. 85 RTA with regards to the overall merits and justice. I find that the tenants should not be required to pay the period of rent due to the confusion created by the multiple tenancy agreements, but that an award of exemplary damages in favour of the tenants for the invalid notice of termination is similarly uncalled for.
I find that the overall merits and justice of this matter requires the Tribunal to make no orders and to dismiss the applications by both landlord and tenant.
Both parties have applied for name suppression.
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
In the present case, neither party has been wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord and tenant having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlord and tenants’ names and identifying details outweigh the interest of the open justice reporting principle.
In my view, the application for name suppression and identifying details ought to be declined for the following reasons: a. It is common for parties appearing before the Tribunal to seek suppression orders. But that is not of itself a sufficient reason to make the order. b. The disputes before me are not unusual or other than the ordinary business of the Tribunal. c. The open justice principle requires the outcome of adjudication to be available to the public; and d. Weighing up the interests of the landlord and the public interest, the public interest outweighs the tenant’s interests.
Accordingly, no order is made for suppression of the landlord and tenants’ names and identifying details.

Tenancy Tribunal case 4753536 — Rent arrears at Unit/Flat Apartment 2, 715 Frankton Road, Queenstown,

At a glance

Tenancy Tribunal case 4753536 — Rent arrears at Unit/Flat Apartment 2, 715 Frankton Road, Queenstown,

At a glance

Claims & awards

Order

Reasons

Did the landlord agree to allow for the early release of the tenants?

How much is owed for rent ?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord agree to allow for the early release of the tenants?

How much is owed for rent ?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions