What was the outcome of Tenancy Tribunal case 4853961?

The tribunal order states: The tenancy of Raven Arlee Tremaine Barnes at 129 Pembroke Street,

How much money was awarded in case 4853961?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4853961?

The dispute type was not classified.

Where can I read the official tribunal order for case 4853961?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10358954-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4853961?

The tribunal order states: The tenancy of Raven Arlee Tremaine Barnes at 129 Pembroke Street,

How much money was awarded in case 4853961?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4853961?

The dispute type was not classified.

Where can I read the official tribunal order for case 4853961?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10358954-Tenancy_Tribunal_Order.pdf.

129 Pembroke Street, Westown, New Plymouth 4310 Tenancy Tribunal Case 4853961 — Tenancy dispute

Order

The tenancy of Raven Arlee Tremaine Barnes at 129 Pembroke Street, Westown, New Plymouth 4310 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59pm on Tuesday 28 May 2024.

Reasons

Both parties attended the hearing which took place by telephone. The tenant did not attend himself, but his sister (Ms Little-Feakins) attended on his behalf as his representative.
She says that she has permission to speak on Mr Barnes’s behalf at the hearing today. I accepted the request for Mr Barnes to have a representative because he is in prison and therefore attendance himself would be difficult. Further, the landlord also agreed to the representative.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord says the tenant has breached his obligations by failing to live in the premises. The tenant is no longer living at the premises because he is in prison. I heard and was provided with written evidence that he has been incarcerated since 28 December 2023. The landlord first found out about this on 20 February 2024.
The tenancy agreement states: Clause 24. You must live at the premises at all times and the premises must be used principally as a home for you and your family. Clause 25. You need to let us know in writing if you are going to be away from the premises for more than 30 days (for example, if you are on holiday, or sick).
Section 21 of the tenancy agreement also records that the premises have been allocated to the tenant based on need and because he meets the landlord’s application criteria. However, if the tenant no longer needs the premises, they must be returned to the landlord so that they can be rented to another eligible person in need of housing.
The landlord has not served a 14-day notice because they say the breach is incapable of remedy. This is because the tenant is incarcerated and could not have returned to the property and still cannot return. Evidence provided showed that the tenant would remain incarcerated as his next court appearance was on 24 July 2024.
The tenant’s representative says that the tenant is trying to get a bail hearing. The tenant’s father is presently living at the address with his daughter and I heard her position that the tenant’s father is entitled to a 2 bedroom Kāinga Ora house and he is high on the housing register. I heard how the father is presently living at the home due to him no longer being able to live at his private rental. I heard from the tenant’s representative that the tenant physically can’t presently live at the property presently but if circumstances allowed him to do so he would presently be there.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
The tenant has breached their obligations by not living at the premises at all times and by not advising the landlord that they were to be away from the property for over 30 days.
I find that this is a breach incapable of remedy in these circumstances. This is because: a. The tenant cannot undo the breach that he failed to tell the landlord about him being away from the property for more than 30 days. b. He has not lived at the premises since 28 December 2023 (being almost 5 months) and he remains unable to live there, and so cannot undo this breach, because he is presently incarcerated. The Tribunal cannot order for the tenant to return to the premises to live there because he is in prison. The tenant’s representative did not have any probative evidence that the tenant could expect to be released before July and no evidence was presented as to how long the tenant might ultimately be incarcerated for. c. In Housing New Zealand Corp v Fonua TT Auckland TT2414/03, 25 November 2003 the landlord was a social housing provider and the tenant had moved to a retirement village. The Tribunal found that the breach was not capable of remedy and that it was in breach of the tenancy agreement requiring the tenant to live at the tenancy premises. I find these circumstances of that case to be similar to this case.
It would be inequitable to refuse to terminate the tenancy because the tenant is no longer living at the property and the home should be returned to the landlord so that it can be rented to another eligible person in need of housing. The landlord is a social housing provider. Naturally, it is important that the landlord ensure that its limited resource of social housing goes to those most in need. While the father of the tenant may be eligible for a Kāinga Ora home (there was no probative evidence of this) he is not a tenant at this property and it is Kāinga Ora and the appropriate Government bodies who will assess his needs according to the relevant criteria. I heard how they do not consider the father to be eligible for this home and I accept this evidence.
Accordingly, the tenancy is terminated and possession is granted to Kāinga Ora–Homes And Communities, at 11.59pm on Tuesday 28 May 2024. Rather than grant immediate termination, I have allowed some time before the end of the tenancy because both parties agreed the rent was up to date and the landlord agreed to give the family a week prior to seeking possession.
Kāinga Ora–Homes And Communities has wholly succeeded with the claim but does not seek the filing fee.

Order

The tenancy of Raven Arlee Tremaine Barnes at 129 Pembroke Street, Westown, New Plymouth 4310 is terminated, and possession is granted to Kāinga Ora–Homes And Communities, at 11.59pm on Tuesday 28 May 2024.

Reasons

Both parties attended the hearing which took place by telephone. The tenant did not attend himself, but his sister (Ms Little-Feakins) attended on his behalf as his representative.
She says that she has permission to speak on Mr Barnes’s behalf at the hearing today. I accepted the request for Mr Barnes to have a representative because he is in prison and therefore attendance himself would be difficult. Further, the landlord also agreed to the representative.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.
The landlord says the tenant has breached his obligations by failing to live in the premises. The tenant is no longer living at the premises because he is in prison. I heard and was provided with written evidence that he has been incarcerated since 28 December 2023. The landlord first found out about this on 20 February 2024.
The tenancy agreement states: Clause 24. You must live at the premises at all times and the premises must be used principally as a home for you and your family. Clause 25. You need to let us know in writing if you are going to be away from the premises for more than 30 days (for example, if you are on holiday, or sick).
Section 21 of the tenancy agreement also records that the premises have been allocated to the tenant based on need and because he meets the landlord’s application criteria. However, if the tenant no longer needs the premises, they must be returned to the landlord so that they can be rented to another eligible person in need of housing.
The landlord has not served a 14-day notice because they say the breach is incapable of remedy. This is because the tenant is incarcerated and could not have returned to the property and still cannot return. Evidence provided showed that the tenant would remain incarcerated as his next court appearance was on 24 July 2024.
The tenant’s representative says that the tenant is trying to get a bail hearing. The tenant’s father is presently living at the address with his daughter and I heard her position that the tenant’s father is entitled to a 2 bedroom Kāinga Ora house and he is high on the housing register. I heard how the father is presently living at the home due to him no longer being able to live at his private rental. I heard from the tenant’s representative that the tenant physically can’t presently live at the property presently but if circumstances allowed him to do so he would presently be there.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
Where the breach is not capable of remedy, the landlord is not required to serve a 14-day breach notice on the tenant. A breach is not capable to remedy where the thing done, or its effect, cannot be undone.
The tenant has breached their obligations by not living at the premises at all times and by not advising the landlord that they were to be away from the property for over 30 days.
I find that this is a breach incapable of remedy in these circumstances. This is because: a. The tenant cannot undo the breach that he failed to tell the landlord about him being away from the property for more than 30 days. b. He has not lived at the premises since 28 December 2023 (being almost 5 months) and he remains unable to live there, and so cannot undo this breach, because he is presently incarcerated. The Tribunal cannot order for the tenant to return to the premises to live there because he is in prison. The tenant’s representative did not have any probative evidence that the tenant could expect to be released before July and no evidence was presented as to how long the tenant might ultimately be incarcerated for. c. In Housing New Zealand Corp v Fonua TT Auckland TT2414/03, 25 November 2003 the landlord was a social housing provider and the tenant had moved to a retirement village. The Tribunal found that the breach was not capable of remedy and that it was in breach of the tenancy agreement requiring the tenant to live at the tenancy premises. I find these circumstances of that case to be similar to this case.
It would be inequitable to refuse to terminate the tenancy because the tenant is no longer living at the property and the home should be returned to the landlord so that it can be rented to another eligible person in need of housing. The landlord is a social housing provider. Naturally, it is important that the landlord ensure that its limited resource of social housing goes to those most in need. While the father of the tenant may be eligible for a Kāinga Ora home (there was no probative evidence of this) he is not a tenant at this property and it is Kāinga Ora and the appropriate Government bodies who will assess his needs according to the relevant criteria. I heard how they do not consider the father to be eligible for this home and I accept this evidence.
Accordingly, the tenancy is terminated and possession is granted to Kāinga Ora–Homes And Communities, at 11.59pm on Tuesday 28 May 2024. Rather than grant immediate termination, I have allowed some time before the end of the tenancy because both parties agreed the rent was up to date and the landlord agreed to give the family a week prior to seeking possession.
Kāinga Ora–Homes And Communities has wholly succeeded with the claim but does not seek the filing fee.

Tenancy Tribunal case 4853961 — Tenancy dispute at 129 Pembroke Street, Westown, New Plymouth 4310

At a glance

Claims & awards

Tenancy Tribunal case 4853961 — Tenancy dispute at 129 Pembroke Street, Westown, New Plymouth 4310

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Order

Reasons

Should the tenancy be terminated?

Topics & place

Residential Tenancies Act sections

Frequently asked questions