What was the outcome of Tenancy Tribunal case 4816824?

The tribunal order states: Elaine Simiona and Josslyn Siminona are allowed to collect all of their goods and

How much money was awarded in case 4816824?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4816824?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes.

Where can I read the official tribunal order for case 4816824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11078481-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4816824?

The tribunal order states: Elaine Simiona and Josslyn Siminona are allowed to collect all of their goods and

How much money was awarded in case 4816824?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4816824?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes.

Where can I read the official tribunal order for case 4816824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11078481-Tribunal_Order.pdf.

39 Cambridge Terrace, Papatoetoe, Auckland 2025 Tenancy Tribunal Case 4816824 — Rent arrears

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Reasons

Both parties attended the rehearing on 13 November 2024. The tenants are supported by Michael Gladding.

In this rehearing before me, the landlord seeks an order that the tenant is liable to bear the costs of the removal of rubbish and belongings left behind by the tenant. This issue of liability turns on whether the tenant has agreed at the start of the tenancy to remove all her rubbish and belongings at the end of the tenancy.

Adjudicator N Walker has by order of 19 March 2024 awarded rent arrears of $1,907.29 being rent to that date and filing fee of $20.44 to the landlord. The dismissal of the landlord’s claim in respect of the removal of rubbish and compensation for the costs was appealed to the District Court which appeal was allowed by DCJ Clark on 13 August 2024.

Judge D J Clark directed the landlord’s claim for rubbish removal costs for rehearing as follows: (a) What is actually being held on the property. Is it personal belongings, rubbish or a combination of both? Ms Matlin now describes there being two container loads of personal belongings, including general rubbish. The Tribunal cannot make orders unless the details of what is held is made known; (b) If what is held are personal belongings, then what orders can be made for the disposal of the same. The onus will be on Farihah Properties Ltd to establish the nature of the orders needed. (c) What costs can be recovered as a result of any sale of the personal belongings? Again, the onus will be on Farihah Properties Ltd to establish this.

In upholding the appeal against dismissal of the landlord’s claim in respect of the removal of rubbish and compensation for the costs, Judge Clark concluded: [11] Farihah Properties Ltd is reminded they must comply strictly with the provisions of ss 62 to 62D of the RTA if they have any chance of recovery of costs the disposal. [12] Of course, if Farihah Properties Ltd is unable to establish what is held is anything more than general rubbish, the Tribunal will also be entitled, as it has already done so, to determine no agreement was reached for the clean-up of rubbish. If so, Farihah Properties Ltd will need to meet the costs of the clean-up.

The background of the case has been aptly summarised by adjudicator Walker thus: [3]...the tenants previously owned the premises. After a mortgagee sale the purchaser entered into an agreement for the tenant to rent the premises. The landlord advised that the sale was not subject to the tenancy and instead it provided for vacant possession. [4] The rubbish situation was present prior to the purchase. The new owner did not address this issue at the time of purchase. This meant that the landlord did not comply with section 45(1)(a) Residential Tenancies Act which states that the landlord shall provide the premises in a reasonable state of cleanliness. [5] While the tenant contributed to the rubbish situation prior to the purchase it is not clear that they should be liable for the cost of removing the rubbish given the sale and purchase that has taken place.

It is common ground that Dr Bashir Ahmed (whose property is managed by Farihah Properties Limited) became the legal owner of the premises on 28 June 2023 after purchasing the premises from the tenant’s bank at a mortgagee sale.

I expand the legal position to those facts as follows: a. Had Elaine and Josslyn not entered into a tenancy agreement with Farihah Properties, Farihah Properties (or the legal owner) would have been entitled to possession of the premises on 28 June 2023 as legal owner (or as agent for the legal owner). b. In the absence of a tenancy, Elaine and Josslyn may only occupy the premises from 28 June 2023 onwards if permitted by Farihah Properties. c. In the absence of a tenancy or licence to occupy granted by Farihah Properties from 28 June 2023, Elaine and Josslyn’s continued occupation of the premises from 28 June 2023 onwards would have been regarded as squatter or trespasser which would have entitled Farihah Properties to seek an order for possession of the premises at the Tenancy Tribunal under section 65 Residential Tenancies Act 1986. d. In the absence of a tenancy or licence to occupy granted by Farihah Properties from 28 June 2023, the order for possession granted to Farihah Properties under section 65 RTA would enable bailiffs to carry out eviction of Elaine and Josslyn from the premises as a warrant for the recovery of land. e. On Elaine and Josslyn’s eviction from the premises, the legal owner Farihah Properties would be entitled to remove rubbish left behind by the trespassers/squatters as the legal owner Farihah Properties sees fit. f. Any ability by the legal owner Farihah Properties to seek costs for the removal of the trespassers/squatters’ rubbish and belongings would then be a matter for the civil courts to adjudicate. g. The Tenancy Tribunal does not have jurisdiction to determine issue of the costs for the removal of rubbish/belongings left behind by trespassers/squatters. h. In the absence of a residential tenancy, the Tribunal’s jurisdiction under section 65 RTA is limited to making a possession order. See for example Scott v Kirby [2024] NZTT 4973373 where adjudicator R Woodhouse stated: [12] What this means in effect is that the Tribunal can make orders under the RTA against landlords and tenants, and make orders under section 65 which relate to a non-tenant occupier and person with a right of occupation. But the only order that can be made under section 65 is a possession order, not any other orders that may be requested. For example let’s say the landlord had the locks changed during the eviction of a squatter, while the Tribunal could have ordered the squatter be evicted, we could not also order the cost for the lock change. [13] ...[while] the parties may have reached an agreement in relation to the [disposal of] goods, I express no view on that matter because I have no jurisdiction to do so [and] those will not be disputes that the Tenancy Tribunal could consider. i. In this case before me however, from 28 June 2023, Farihah Properties, as landlord, did enter into a tenancy agreement with Elaine and Josslyn, for their continued occupation of the premises as tenants in consideration of weekly rent of $850. The fact that the rent has been partly paid by WINZ is immaterial to the issues in dispute before me; the issue of rent being paid in consideration of Elaine and Josslyn’s right of occupation simply gives rise to a residential tenancy under the RTA. j. Consequently, any issue to do with the landlord Farihah Properties’ ability to recover costs for the removal of rubbish and/or belongings of Elaine and Josslyn hinges on whether the tenant had agreed at the start of the tenancy to remove all their rubbish and belongings (that was present at the start of the tenancy) at the end of the tenancy. k. In the absence of such an agreement between the parties, the landlord Farihah Properties would not be able to seek costs for removal of rubbish already on the premises at the start of the tenancy. l. At best, the landlord Farihah Properties would only be able to seek costs for removal of rubbish that were not already on the premises at the start of the tenancy, but accumulated subsequently during the tenancy. As noted by DCJ Clark at [12] if Farihah Properties Ltd is unable to establish what is held is anything more than general rubbish, the Tribunal will also be entitled, as it has already done so, to determine no agreement was reached for the clean-up of rubbish. If so, Farihah Properties Ltd will need to meet the costs of the clean-up.

Farihah Ahmed-Joubert of Farihah Properties contends that the tenant had agreed at the start of the tenancy to remove all her rubbish and belongings at the end of the tenancy. Ms Ahmed-Joubert refers to these email and text correspondences to support her contention: a. Email of 26 June 2023 from Tanziha Matin (on behalf of Farihah Properties) to Ana Fakahau (as social worker/agent for Elaine) where the landlord discovered that they are in need of assistance to remove their belongings from the property and unable to find alternative accommodation promptly, offering to Elaine ‘to continue her tenancy’ provided she completes all the necessary formalities. Tanziha stressed that time if of the essence as the property must either be vacated by 28 June or the tenancy agreement must commence on that date. b. Ana responded on 26 June that she is not Elaine’s lawyer, but a support worker for Elaine, and that from her understanding, “Elaine would like to stay in the current home for only one month while she sorts her possessions into storage or safe space but only if WINZ is able to support her financially and you guys agree for her extension of one month staying. Otherwise Elaine will have to vacate on 28 June as planned.” c. Tanziha texted Elaine on 28 June 2023 at 16:26 hrs that “we will need to enter the house and access by 10am tomorrow morning. Kindly remove all the belongings from site by today. We understand that you have started the process by getting your belongings out last week so I hope that all has now been done.” d. Dr Bashir Ahmed in his witness statement dated 11 November 2024 confirmed having visited Elaine and Josslyn at the property during which visit they both expressed a strong desire to continue living in the property, as tenants. Ouf of goodwill, Dr Bashir allowed them to “continue the tenancy” under the condition that they maintain the premises in a clean and tidy manner. The property was in an “unsafe and cluttered condition,” and Elaine’s hoarding tendencies made the property hazardous and prevented Healthy Homes compliance. Dr Bashir reiterated that the requirement to keep the premises tidy was made clear from the beginning of the tenancy. e. Dr Bashir texted Elaine on 18 July 2023: “Have you cleared junk?”

However, I am not satisfied that those correspondence, whether viewed collectively or individually, point to the tenant having agreed at the start of the tenancy to remove all her rubbish and belongings at the end of the tenancy.

At best, Dr Bashir’s communication indicated his concerns with the hoarding of belongings and accumulation of rubbish already present at the property at the start of the tenancy.

The landlord’s offer to the tenant to stay at the premises was only conditional on an agreed rent of $850 and “necessary formalities” which I infer to be a signed tenancy agreement. That said, while a written tenancy agreement was prepared, it had not been executed by the parties. Notwithstanding the absence of the signed tenancy agreement, section 13C RTA provides that no tenancy agreement shall be unenforceable on the grounds that it is not in writing. Accordingly, the fact of rent of $850 being paid by the tenant (which rent was accepted by the landlord) indicates that the parties had a tenancy agreement, albeit not in writing.

The email of 26 June 2023 from Tanziha Matin about the tenant’s need of assistance to remove their belongings from the property does not indicate an agreement by the tenant to remove all her rubbish and belongings at the end of the tenancy. Nothing from that email indicates any agreement by the tenant on having to remove all her rubbish and belongings at the end of the tenancy, as a condition of accepting the tenancy.

The response from Ana on 26 June that Elaine would like to stay in current home for only one month while she sorts her possessions into storage or safe space only indicates that Elaine is prepared to leave after 28 June but require a month’s time to do so. I reiterate that in the absence of any tenancy between the parties, Elaine and Josslyn’s occupation of the premises would be as squatter or trespasser which makes them liable to be removed from the property under section 65 RTA but that is as far as any orders can be made by the Tenancy Tribunal.

Tanziha’s text to Elaine on 28 June 2023 at 16:26 hrs to vacate and “remove all the belongings from site by today” can only be viewed as an urging by the legal owner to squatters/trespassers to vacate. It is not evidence of agreement by the tenant to remove all her rubbish and belongings at the end of the tenancy at all! Again, the failure to vacate and remove belongings simply gives rise to an application for possession at the Tenancy Tribunal under section 65 RTA.

Dr Bashir’s text to Elaine on 18 July 2023: “Have you cleared junk?” is equally of no moment. This text was issued well after the tenancy had already begun between the parties. I do not consider Dr Bashir’s question indicative of an agreement by the tenant at the start of the tenancy to remove all her rubbish and belongings at the end of the tenancy. At best, Dr Bashir’s text can only be viewed as a request by the landlord to the tenant to remove rubbish that has already accumulated at the property since the start of the tenancy.

I prefer Elaine’s direct evidence given at the hearing that she had not agreed at the start of the tenancy to remove all her rubbish at the end of the tenancy as a condition for staying on the property as a tenant.

I therefore find on balance that the tenant had not agreed at the start of the tenancy to remove all her rubbish at the end of the tenancy.

The rubbish situation was present on settlement of the landlord’s purchase of the property and at the start of the tenancy. The new owner did not address this issue at the time of purchase. I agree with adjudicator Walker that this meant that the landlord did not comply with section 45(1)(a) Residential Tenancies Act which states that the landlord shall provide the premises in a reasonable state of cleanliness. Consequently, the tenant is only obliged to return the premises in the same condition as what was there at the start of the tenancy.

For those reasons, the landlord’s claim that the tenant is liable to bear the costs of the removal of rubbish that were already there on the property at the start of the tenancy must fail.

One other issue had been discussed at the rehearing which is to do with the tenants wanting to remove their belongings if given the opportunity to do so; the landlord is prepared to allow the tenants 7 days to remove their belongings. Elaine is adamant that most of the items still at the property are not rubbish but goods and belongings accumulated over a period of 16 years living at the property.

Pursuant to section 62B(2)(a) RTA, I hereby make an order for the return of the goods to the tenant latest by 20 November 2024.

Reasons

Both parties attended the rehearing on 13 November 2024. The tenants are supported by Michael Gladding.

At best, Dr Bashir’s communication indicated his concerns with the hoarding of belongings and accumulation of rubbish already present at the property at the start of the tenancy.

I therefore find on balance that the tenant had not agreed at the start of the tenancy to remove all her rubbish at the end of the tenancy.

For those reasons, the landlord’s claim that the tenant is liable to bear the costs of the removal of rubbish that were already there on the property at the start of the tenancy must fail.

Pursuant to section 62B(2)(a) RTA, I hereby make an order for the return of the goods to the tenant latest by 20 November 2024.

Tenancy Tribunal case 4816824 — Rent arrears at 39 Cambridge Terrace, Papatoetoe, Auckland 2025

At a glance

Tenancy Tribunal case 4816824 — Rent arrears at 39 Cambridge Terrace, Papatoetoe, Auckland 2025

At a glance

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Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions