What was the outcome of Tenancy Tribunal case 4858800?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4858800?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858800?

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

Where can I read the official tribunal order for case 4858800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10470244-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4858800?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4858800?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4858800?

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

Where can I read the official tribunal order for case 4858800?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10470244-Tenancy_Tribunal_Order.pdf.

78 Aldwins Road, Phillipstown, Christchurch 8062 Tenancy Tribunal Case 4858800 — Rent arrears

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Reasons

Both parties attended the hearing. Ms Gonzales attended on behalf of the landlord.

The landlord has applied for termination of the tenancy (under both s55(1)(aa) and section 56(1) of the Residential Tenancies Act 1986), rent arrears, compensation, partial refund of the bond, and reimbursement of the filing fee. Should the tenancy be terminated under s55(1)(aa)?

The Tribunal shall terminate a tenancy where: a. on 3 separate occasions within a 90-day period the rent has been at least 5 working days in arrear; and b. on each occasion the landlord gave the tenant written notice advising the tenant of the arrear, the dates for which rent was overdue, the amount or amounts of overdue rent, and the tenant’s right to make an application to the Tribunal challenging the notice; and c. each notice stated how many other notices (if any) the landlord had given the tenant under this paragraph in relation to the same tenancy and 90-day period; and d. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.

In this case I find the landlord has served notices on the tenant as required in the Residential Tenancies Act 1986 (the Act), and the application to the Tribunal was made within 28 days of the date of the third notice.

The rent was increased from $400 to $480 per week from 4 April 2024. The tenants continued to pay $400 per week only creating arrears of $559.99 by the time the application was made.

The landlord provided evidence that the rent had been brought up to date prior to the hearing.

The tenants gave evidence that, on receiving the rent increase notice (on 21 December 2023), they had applied to WINZ to increase the amount paid each week accordingly. WINZ had agreed to make the change to the rent amount on behalf of the tenants.

The tenant said that the 5-day notices from Braziers went into her email junk folder but when she noticed them, she contacted WINZ who apologised and immediately agreed to bring the arrears up to date and to increase the weekly payments to cover the new rent as agreed.

I find that there was no intention on the part of the tenants to fall into arrears and that they were unaware of the situation until they saw the third notice.

They immediately contacted WINZ and ensured that the arrears were paid in full.

I am satisfied that the breach has been remedied and that the landlord has been compensated for the loss. I am also satisfied that the tenant now has arrangements in place to ensure that they do not fall into arrears in this way again.

The tenancy is not terminated under this section. Should the tenancy be terminated for breach of the tenant’s obligations under s56(1)?

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 under section 56(1) of the Act 1986.

Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.

The landlord says that the tenant has breached their obligations by failing to keep the premises reasonably clean and tidy and by intentionally or carelessly damaging the premises.

The tenancy began on 11 September 2012 and the landlord amalgamated with the previous management company on 1 December 2022.

The landlord completed a routine inspection on 21 November 2023. This inspection report was provided to the Tribunal but there was no ingoing inspection report provided.

A number of items were not up to this landlord’s standards and a 14-day notice was issued asking that the tenant complete these matters, or the landlord would do so at the tenant’s expense.

The first 14-day notice was issued on 22 November 2023. The tenants were required to clean a number of areas of the house, tidy the garden and make various repairs.

The notice said that if the work was not completed within the 14-day period, Braziers would attend to it at the tenant’s cost.

There was some correspondence between the parties following the notice with the tenants explaining that they had not had a chance to complete all of the items and asking for extra time. An extra three days was given.

The interior cleaning was attended to, but the lawns were not tidied, and the repairs were not all completed. The lawn work was done by an independent contractor at a cost of $517.50.

The tenant questioned why the interior repair work had suddenly become urgent when it had not previously been an issue.

Another 14-day notice was issued on 1 February 2024. This specified further cleaning and referred to the repairs from the first notice that had not yet taken place.

From evidence provided in the hearing room, it seems that at least some of the damage referred to in the notices may have been accidental and should not be the tenants’ responsibility.

For a tenant to be responsible for damage, the landlord must prove that it occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage.

The original tenancy agreement says at paragraph 16, “The tenant is responsible for any damage caused, and on vacating the property is to restore the property back to the original condition. The tenant is responsible for all breakage of glass unless it can be shown to be due to a property defect.”

Given this, and the lack of attention these matters had received from previous property managers it is understandable that the tenants expected that this work could be dealt with (if it was their responsibility to do so) at a more leisurely pace (and as finances allowed) given that no further harm was likely to occur if the particular repairs were not attended to immediately.

The tenants have been in this property for over 12 years and some of the damage seems to be historical. There have been property inspections since the damage occurred and the tenants were not asked to make good the damage before now.

I do not consider that any of the breaches referred to in either 14-day notice are of such a nature or extent that it would be inequitable to refuse to terminate the tenancy.

The tenancy is not terminated under this section. Compensation for garden work

As the tenancy is not terminated, there can be no compensation paid from the bond as claimed in the application.

I am not ordering compensation for the costs of the garden work at this time as there is some uncertainty as to whether the tenant was liable for other repair work already undertaken by them.

The tenants undertook this repair work under threat of termination pursuant to the 14-day notices in circumstances where there is doubt as to whether this work was actually their responsibility.

The tenant completed this work without knowledge of their rights and responsibilities under the Act.

The landlord does not seem to have turned its mind to whether the items raised in the 14-day notices are properly the responsibility of the tenant. There does not seem to have been any discussion about the circumstances in which the damage occurred.

Under section 85(2) of the Act, I do not consider that it is fair and just to order the tenants to pay this compensation in circumstances where they themselves may have an entitlement to compensation for the cost of repairs that they undertook under the 14-day notice.

It is often the role of this Tribunal to determine whether a tenant should be liable for costs of repairs. A landlord may wish to recover all losses from the tenant, but the Act does not always support that.

A proper accounting of these matters should be undertaken, and it may be that further recourse to mediation or adjudication is necessary to assist in this matter.

The parties are free to bring another claim to determine liability for damages at a later date should they wish to do so.