What was the outcome of Tenancy Tribunal case 4789757?

The tribunal order states: Mc & Sl Vercoe Partnership Shannon Vercoe is granted possession of the

How much money was awarded in case 4789757?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4789757?

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

Where can I read the official tribunal order for case 4789757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9915038-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4789757?

The tribunal order states: Mc & Sl Vercoe Partnership Shannon Vercoe is granted possession of the

How much money was awarded in case 4789757?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4789757?

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

Where can I read the official tribunal order for case 4789757?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9915038-Tenancy_Tribunal_Order.pdf.

325 Kokopu Block Road, Kokopu, RD 9, Whangarei 0179 Tenancy Tribunal Case 4789757 — Rent arrears

Order

Mc & Sl Vercoe Partnership Shannon Vercoe is granted possession of the premises at 325 Kokopu Block Road, Kokopu, RD 9, Whangarei 0179 at 11.59 am on Thursday 22 February 2024.
All other applications are dismissed.

Reasons

Both parties attended this remote teleconference hearing.
The tenancy commenced on 17 July 2023. It is a service tenancy.
A service tenancy is defined at s. 2 of the Residential Tenancies Act 1986 (“RTA”). It means a tenancy granted as a term of, or as an incident of a contract of service or a contract for services between the landlord as an employer and the tenant as employee or contractor, whether or not there is a separate written tenancy agreement and whether or not rent is payable.
The tenant worked on the landlord’s farm.
The landlord has filed three applications; • An application to terminate the tenancy as the rent was in arrears by 21 days or more on the day that the application was filed with the Tribunal. • A possession order. • Rent arrears. General Law
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the landlord) to establish their claims “on the balance of probabilities.” That means that the landlord must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
In this case, both parties have submitted documentary evidence including emails, notices and schedules relating to rent arrears and work completed. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered. Termination
Section 55(1)(a) RTA provides that the Tribunal shall terminate a tenancy on the application of a landlord where the rent is 21 days of more in arrears on the date that the application is filed with the Tribunal.
This application was filed on 24 January 2024. The landlord has filed a rent summary which indicates that the arrears of rent on 24 January 2024 was $2,442.85. That is more than 21 days.
The landlord operates a farm. The landlord says that the tenant was to carry out work on the farm in return for rent. No tenancy agreement or other documentary evidence was provided by the landlord recording the arrangements with the tenant.
The landlord said that the tenant was employed on a casual basis. No time sheets or other records of the tenant’s work were supplied.
The landlord said that the tenant’s work was not satisfactory and the employment was terminated on 14 December 2023.
The landlord accepted in evidence that there had been no discussion as to what would happen in the event that the work carried out by the tenant was valued at more than the $450.00 per week rent.
The tenant evidence was that the parties had agreed that any work carried out over and above the rent requirement would be paid for by the landlord.
The landlord’s rent summary shows that the tenant has been present for 28 weeks and five days as of the date of the hearing. The rent for that period at $450.00 per week is $12,921.42.
The tenant has provided a schedule which shows that there is a greater sum owed by the landlord to the tenant for the work carried out over and above the $450.00 per week claimed.
In response, the landlord said that the tenant schedule was wrong for three reasons. Firstly, it included work that had not been done, secondly, some of the work charged for had never been requested by the landlord and finally, some of the hours charged for were excessive for the work.
Neither party has provided evidence that is particularly helpful or persuasive. Having a written agreement on precisely the terms of the arrangement would no doubt have avoided this dispute. Having a global calculation of the amount of work carried out by the tenant, rather than a weekly calculation, is also not helpful, nor particularly persuasive.
As noted earlier in this decision, “it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.”
It is for the landlord to provide evidence to support their application. If they fail to provide that evidence, even where the landlord application may have some merit, the application must fail. It is not up to the tenant to disprove the landlord claim.
The termination application is dismissed. Possession
Section 64 RTA provides that the Tribunal may on the application of any person entitled to possession of the premises following the termination of the tenancy, make an order granting possession of the premises.
On 22 December 2023, the landlord gave the tenant 63 days’ notice to terminate the tenancy on the grounds that “the landlord customarily uses the premises, or has acquired the premises for occupation by employees of the landlord, or contractors under contracts for services with the landlord. That fact is clearly stated in the tenancy agreement, and the premises are required for that use.” The notice records that the last day of the tenancy will be 22 February 2024 (“the first notice”).
Section 51(4) RTA provides that no special words need be used in a notice, and the notice will be valid as long as it is in writing, the intention to terminate on a particular date is stated clearly in the notice and that any non-compliance in the notice is not such as to mislead or affect unjustly the interests of the recipient.
The notice is in writing. The intention to terminate on a particular date is clear. The non-compliance with regards to the failure to clearly state in any tenancy agreement that the landlord customarily uses the premises for occupation by employees of the landlord, or contractors under contracts for services with the landlord is not such as to mislead or unjustly affect the interest the tenant. It was clear to the tenant that this was a service tenancy.
The landlord said that they discovered that the first notice may have been defective. On 26 December 2023, the landlord issued a second termination notice (“the second notice”). The tenant says that he did not receive this notice. In this matter, I prefer the evidence of the landlord that the notice was served.
Section 51(6) RTA provides that a party has given an effective notice to terminate a tenancy, may revoke the notice with the consent of the other party and may only give further notice to terminate the tenancy if that prior notice is revoked.
The second notice provides the tenant with notice that the service tenancy is terminated on 14 days’ notice and that the last day will be 9 January 2024.
No evidence of the tenant consenting to the first notice being revoked has been proffered to the Tribunal.
The landlord is not limited to the provisions of s. 53 RTA in terminating a service tenancy. The Tribunal in Gorrie v Commissioner of Police (2022) NZTT 4354469, adopted the District Court decision in Beal v Commissioner of Police ( District Court, Christchurch, 30/5/2000) that s.53 RTA is not the sole and exclusive provision for terminating service tenancies.
In those circumstances, I find that the first notice is valid and has not been revoked simply by the issuing of a second notice.
The tenancy is terminated under the terms of the first notice which brings the tenancy to an end on 22 February 2024. Rent Arrears
The landlord seeks rent arrears of $3,021.42. For the reasons given previously in this order, the application is dismissed. The landlord evidence of rent arrears does not meet the standard required and the application is dismissed.

Tenancy Tribunal case 4789757 — Rent arrears at 325 Kokopu Block Road, Kokopu, RD 9, Whangarei 0179

At a glance

Tenancy Tribunal case 4789757 — Rent arrears at 325 Kokopu Block Road, Kokopu, RD 9, Whangarei 0179

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions