What was the outcome of Tenancy Tribunal case 4796683?

The tribunal order states: Priay Kakkar to pay Home Sweet Home Property Management Limited as agent

How much money was awarded in case 4796683?

Advertising Costs: $120.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $838.32 awarded to landlord; Rent Arrears: $1,080.00 awarded to landlord

What type of tenancy dispute was case 4796683?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4796683?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10402019-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4796683?

The tribunal order states: Priay Kakkar to pay Home Sweet Home Property Management Limited as agent

How much money was awarded in case 4796683?

Advertising Costs: $120.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $838.32 awarded to landlord; Rent Arrears: $1,080.00 awarded to landlord

What type of tenancy dispute was case 4796683?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4796683?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10402019-Tenancy_Tribunal_Order.pdf.

Unit/Flat A, 8 Moera Place, Stanmore Bay, Whangaparaoa Tenancy Tribunal Case 4796683 — Rent arrears

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Order

Claims and awards in Tenancy Tribunal application 4796683 — net $2,058.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 1 February 2024	$1,080.00	Rent arrears to 1 February 2024
Costs for finding replacement tenants	$838.32	Costs for finding replacement tenants
Advertising costs	$120.00	Advertising costs
Filing fee	$20.44	Filing fee
Net award	$2,058.76
Bond	$2,160.00
Total payable by Tenant to Landlord	$2,058.76

Priay Kakkar to pay Home Sweet Home Property Management Limited as agent for James and Emma Miller $2,058.76 from the bond, calculated as shown in table below:

The Bond Centre is to pay the bond of $2,160.00 (3399143-012) immediately apportioned as follows: Home Sweet Home Property Management Limited as agent for James and Emma Miller: $2,058.76 Priay Kakkar: $101.24

The tenant’s application for a reduction of the term of the fixed term tenancy is dismissed.

The tenant’s application for exemplary damages for the late lodgement of the bond is dismissed.

Reasons

Both parties attended the hearing on 30 May 2024. Ms Hudson represented the landlord. The tenant’s husband also attended.

The landlord has applied for compensation for ‘break lease’ fees, advertising costs and rent arrears.

The tenant has applied for reduction of the term of her fixed term tenancy and exemplary damages for the late lodgement of the bond. Background

The parties signed a tenancy agreement on 21 December 2023 for a fixed term tenancy that was to commence on 12 January 2024 and end on 23 February 2025.

Very soon after, and before she was to take possession, the tenant asked to be released from the tenancy due to a change in her circumstances.

The landlord agreed to find new tenants by advertising and sent the tenant details about possible costs she would incur, known as ‘break lease’ costs. Those costs are charged for the landlord’s time and disbursements for finding replacement tenants and include such things as credit checks, viewings, advertising costs and so on.

The tenant agreed to the landlord deducting ‘reasonable costs’ from her bond. When the landlord advised costs had been deducted, the tenant objected, so the landlord sent the full bond to the Bond Centre.

The bond was lodged 3 days after the statutory timeframe.

The tenant made her application to be released from the fixed term tenancy and for her bond and exemplary damages. The landlord cross-applied, claiming rent arrears to the day before the new tenancy started, break lease fees and advertising costs.

The parties were unable to reach an agreement at mediation.

I held a hearing on 30 May 2024. Issues

The issues the Tribunal must decide are these: • Has the tenant established grounds to be released from her fixed term tenancy before the new tenancy started on 2 February 2024? • Should the tenant be awarded exemplary damages for the landlord’s failure to lodge the bond in time? • Has the landlord proved claims for rent arrears, break lease fees and advertising costs. Has the tenant established grounds to be released from her fixed term tenancy before the new tenancy started on 2 February 2024?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).

When I asked the tenant to describe what the unforeseen change in her circumstances was, she said she ‘had a realisation’ that she needed a house in 2023 not in 2024. She mentioned her then fiancé, how husband, having custody issues. She then said she had been living with friends and wanted her own place more quickly than the date on which the tenancy started. She said she thought the premises would be immediately available.

The tenant said she felt pressured into signing the tenancy agreement and felt she had to sign it to secure a place to live.

The test of ‘unforeseen change in circumstances’ is a test of high threshold. None of the reasons put forward by the tenant comes close to satisfying the statutory test. Her varying explanations for not wanting to proceed with the tenancy simply amount to a change of mind or regret at signing the tenancy agreement.

I explained to the tenant that the Tribunal does not lightly interfere with contracts. Here, the agreement was signed on 21 December 2023 for a tenancy to start about 3 weeks later. The commencement date was clearly set out.

I do not accept that the tenant was pressured into signing the agreement or acted under duress. What I find is that the tenant was regretful a short time after signing the agreement; she asked to be leased from the tenancy; and she agreed to pay reasonable costs associated with that.

Objectively viewed, there has been no unforeseen change in the tenant's circumstances. Her application does not clear the first hurdle and is dismissed. Should the tenant be awarded exemplary damages for the landlord’s failure to lodge the bond in time?

The landlord mentioned varying bond lodgement dates to the tenant. Ms Hudson confirmed that the bond was not lodged until 7 February 2024, 3 days after the statutory timeframe (within 23 working days after payment is made).

Ms Hudson said the tenant agreed to the landlord taking reasonable costs from the bond. When the landlord explained what costs it had taken, the tenant objected, so the landlord then paid the bond to the Bond Centre.

Should the 3-day delay attract a penalty by way of exemplary damages as the tenant says it should?

Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.

Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.

Failing to lodge a bond within the statutory timeframe is an unlawful act. However, in this case I find that the landlord did not commit the unlawful act intentionally. It believed it had the tenant’s permission to deduct costs from the bond. When the tenant objected to the costs the landlord lodged the bond. Also, the events occurred over the holiday period. A 3-day delay is not significant and is has had no effect on the tenant.

The Tribunal does not award exemplary damages lightly. Here there is no need for a sanction given the way events played out between the parties.

I dismiss the tenant’s application for exemplary damages. Has the landlord proved claims for rent arrears, break lease fees and advertising costs.

At the hearing the tenant accepted the landlord’s claim for rent arrears to 1 February 2024, the day before the new tenancy started. Had she not done I would have found that claim proved.

The tenant submitted that the equivalent of 1 week’s rent ($540.00) was fair compensation for the landlord’s break lease and advertising costs. The landlord seeks $838.32 for break lease costs and $120.00 for advertising costs incurred.

The advertising costs were costs actually incurred for finding a replacement tenant. Why should the landlord bear those costs when the advertising was to reduce the tenant’s liability for rent? I find that the tenant is properly liable for those costs.

The amount of $838.32 referred to as a break lease fee is actually compensation for the landlord’s time and effort finding new tenants. It includes such things as doing background checks on tenants, viewings and all the necessary things required to prudently locate and assess a new tenant.

That the tenant considers these costs, which were detailed for her, to be unreasonable does not mean that they are unreasonable in fact.

I have reviewed the costs charged and find that they are objectively reasonable. I award the landlord those costs as compensation for the time and effort it took to find a replacement tenant. Without the landlord’s actions, the tenant’s liability for rent could have continued for longer. Result

The tenant’s application to be released from her fixed term tenancy before the new tenancy started is dismissed as is her application for exemplary damages for the late lodgement of the bond.

The tenant will pay the landlord rent arrears of $1,080.00 to 1 February 2024, break lease costs of $838.32, and advertising costs of $120.00 as well as the landlord’s Tribunal filing fee, a total of $2,058.76.

The bond will be split between the parties - $2,058.76 to the landlord and $101.24 to the tenant. Name suppression

On my enquiry, neither party sought an order for name suppression.

Order

Claims and awards in Tenancy Tribunal application 4796683 — net $2,058.76 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 1 February 2024	$1,080.00	Rent arrears to 1 February 2024
Costs for finding replacement tenants	$838.32	Costs for finding replacement tenants
Advertising costs	$120.00	Advertising costs
Filing fee	$20.44	Filing fee
Net award	$2,058.76
Bond	$2,160.00
Total payable by Tenant to Landlord	$2,058.76