Published tribunal order
Tenancy Tribunal case 4836505 — Tenancy dispute at Unit/Flat 7, 238 The Esplanade, Island Bay, Wellington
Decided 21 Aug 2024 · Published 21 Aug 2024 · Application 4836505
Landlord favoured
- Cleanliness
- Filing Fee
Order
- Patrick Stephen Armstrong must pay Hitesh Tuteja $2,177.58 immediately, as calculated in the table below.
- All other claims for arrears, interest and cleaning costs are dismissed.
Reasons
- Both parties attended the hearing.
- The applicant has applied for rent arrears, interest on unpaid arrears and cleaning costs.
- The applicant is a sub-landlord in respect of the premises. He gave evidence that he entered a lease with the building owner which covers some commercial premises (a shop) on the ground floor and a studio apartment on the first floor which he is entitled to let as a residential tenancy.
- The parties entered a sublease agreement for the studio premises for a fixed term tenancy which commenced on Thursday 16 November 2023 and was not due to expire until 16 May 2024. Weekly rent of $650 was agreed.
Is the landlord owed rent arrears and interest?
- The tenant vacated the premises on or about 4 February 2024. He confirms that he left without notifying the landlord and he stopped paying rent. The landlord was overseas at the time and did not discover that the tenant had left the premises until on or about 12 March 2024.
- This is a fixed term tenancy and, accordingly, it cannot be terminated by either party unless they reach a mutual agreement or by order of the Tribunal upon an application. In that regard, it was not open to the tenant to simply vacate the premises and stop paying rent during the fixed term and nor was he entitled to give notice to end the tenancy before the fixed term expired.
- When the landlord became aware that the tenant had vacated the premises, he took possession of the premises on or about 12 March 2024, arranging for them to be cleaned and advertised for re-letting. He then found new tenants to rent the premises in late April 2024.
- The landlord seeks rent arrears from the tenant to the end of the fixed term on 16 May 2024. However, as explained at the hearing, the landlord was not entitled to take possession of the premises without either the tenant’s consent (which he did not obtain) or by applying to the Tribunal for a termination order. For that reason, I consider that the landlord is not entitled to claim rent arrears after taking possession of the property on 12 March 2024, and I only award rent owed to that date.
- The landlord also claims interest. However, the Tribunal has no power to award interest on arrears pursuant to the Residential Tenancies Act 1986 (RTA) and the claim is dismissed.
Is the landlord entitled to cleaning costs?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
- The landlord claims cleaning costs of $250 but could provide no evidence (photos of the premises) to prove that they were not reasonably clean and tidy when the tenancy ended. Therefore, the claim must be dismissed.
- The landlord is entitled to recover the filing fee on the application. K Stirling, 21 August 2024