What was the outcome of Tenancy Tribunal case 4910213?

The tribunal order states: The tenancy of Eric Murphy at 510A Kings Road, Southbridge 7683 is

How much money was awarded in case 4910213?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $3,250.00 awarded to landlord

What type of tenancy dispute was case 4910213?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4910213?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10574020-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4910213?

The tribunal order states: The tenancy of Eric Murphy at 510A Kings Road, Southbridge 7683 is

How much money was awarded in case 4910213?

Filing Fee: $20.44 awarded to landlord; Rent Arrears: $3,250.00 awarded to landlord

What type of tenancy dispute was case 4910213?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4910213?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10574020-Tenancy_Tribunal_Order.pdf.

510A Kings Road, Southbridge 7683 Tenancy Tribunal Case 4910213 — Rent arrears

Claims and awards in Tenancy Tribunal application 4910213 — net $1,870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 12 July 2024	$3,250.00	Rent arrears to 12 July 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,870.44
Total payable by Tenant to Landlord	$1,870.44

Order

The tenancy of Eric Murphy at 510A Kings Road, Southbridge 7683 is terminated, and possession is granted to Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited, at 2.30pm on Friday 12 July 2024.
Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited may take possession of the premises immediately.
The Bond Centre is to pay the bond of $1,400.00 (6415017-002) to Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited immediately.
Eric Murphy must pay Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited $1,870.44 immediately, calculated as shown in the table below.

Reasons

The landlord’s representative attended the hearing. The tenant did not attend.
The tenant is on remand in prison charged with serious offences and has been there since at least the beginning of May 2024.
There is no doubt that the tenant has received notice of this application. Tenancy Services have contacted him and the address for Christchurch Mens Prison is noted on the file as his address for service.
As well, the landlord was contacted by someone describing themselves as the tenant’s advocate. The landlord told the person they could not discuss the situation with them without written authority from the tenant. The landlord sent a form of authority to the advocate, but they did not hear further from them.
There is nothing to suggest that the tenant himself has contacted Tenancy Services or the Tribunal. In those circumstances I proceeded to hear the application.
The landlord has applied for termination of the tenancy and rent arrears. Background
This tenancy started in January 2023. It is a periodic tenancy.
On about 2 May 2024 it came to the Landlord’s notice that the tenant was in custody and not living at the premises.
Also, on that day the tenant paid rent up to 8 May. That was the last rent payment he made.
On 24 May the landlord sent the tenant a 14-day breach notice for rent arrears which were then $350.
On 10 June the landlord applied for termination of the tenancy for abandonment by way of the expedited process.
On 11 June Tenancy Services wrote to the landlord stating that their expeditated application had been amended to a standard application and it would be scheduled for a hearing. The reason given was that the tenant was incarcerated and had not willingly abandoned the property.
The hearing took place today, 12 July. Law
Under s61 of the Residential Tenancies Act 1986, the Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. The word “abandoned” is not defined in the Act.
Under s56(1) of the Act 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.
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.
Under s56(2) of the Act the Tribunal may terminate a tenancy where the landlord has applied under s56(1) and at the time of the hearing the application could have been made under s55(1)(a) (at least 21 days rent arrears).
Section 85 of the Act provides that the Tribunal must determine cases according to the general principles of law relating to the case and the substantial merits and justice of the case but shall not be bound to give effect to the strict legal rights and obligations or to legal forms or technicalities. Discussion and Decision
In my view the expedited application should have been referred to an Adjudicator for a decision. Tenancy Services’ decision to list the application for a hearing assumes that a person arrested and held in prison cannot abandon premises for the purposes of the Act. I don’t agree with that, but whether it is correct or not, that is a decision for an adjudicator to make.
It follows that, as see it, I can find that the tenant has abandoned the premises.
One consequence of deciding the application in that way is that the landlord would be limited to recovering rent arrears for the period ending 28 days after the landlord became aware or ought to have become aware that the tenant had abandoned the premises.
The landlord became aware of the abandonment (as they saw it) on 2 May and so they would be limited to recovering rent arrears up to 30 May. The rent arrears since then to today are $2,200. The landlord would therefore be denied the opportunity of recovering those arrears after being denied the opportunity of obtaining an earlier termination under the expedited procedure. I don’t see much justice in that.
The application refers to rent arrears and it followed a breach notice for rent arrears that had expired without being remedied. Although the application does not expressly rely on rent arrears as a ground for termination, the grounds are there for the tenant to see and the application seeks termination. In those circumstances I accept that the application can be amended to include rent arrears as a ground for termination.
I see no injustice to the tenant in doing so. He has not paid rent for nearly eight weeks. He could have offered to surrender the tenancy or given 28 days notice of termination and thereby returned the premises to the landlord and mitigated the rent arrears, but he did not do so.
The landlord has made an application under s56 and today they could have made the application under s55 and so I make this order on the ground that there are 21 days or more rent arrears.
In case I am wrong about that, I am satisfied that it would be inequitable not to terminate the tenancy. The arrears are substantial, well over three weeks of rent, and there seems little prospect of them being paid. The order can therefore be made under s56(2) and thereby s55.
I rely on s85 to the extent necessary.
The landlord provided rent records which prove the amount of rent arrears.
The tenant is not living in the premises and the landlord should be allowed to have possession immediately to mitigate their losses. I have therefore permitted the landlord to do so.
The landlord has succeeded and so the tenant must pay the rent arrears.

Claims and awards in Tenancy Tribunal application 4910213 — net $1,870.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears to 12 July 2024	$3,250.00	Rent arrears to 12 July 2024
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,870.44
Total payable by Tenant to Landlord	$1,870.44

Order

The tenancy of Eric Murphy at 510A Kings Road, Southbridge 7683 is terminated, and possession is granted to Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited, at 2.30pm on Friday 12 July 2024.
Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited may take possession of the premises immediately.
The Bond Centre is to pay the bond of $1,400.00 (6415017-002) to Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited immediately.
Eric Murphy must pay Red Chili Property Management Limited - as Agent for 2 Degrees Real Estate Limited $1,870.44 immediately, calculated as shown in the table below.

Reasons

The landlord’s representative attended the hearing. The tenant did not attend.
The tenant is on remand in prison charged with serious offences and has been there since at least the beginning of May 2024.
There is no doubt that the tenant has received notice of this application. Tenancy Services have contacted him and the address for Christchurch Mens Prison is noted on the file as his address for service.
As well, the landlord was contacted by someone describing themselves as the tenant’s advocate. The landlord told the person they could not discuss the situation with them without written authority from the tenant. The landlord sent a form of authority to the advocate, but they did not hear further from them.
There is nothing to suggest that the tenant himself has contacted Tenancy Services or the Tribunal. In those circumstances I proceeded to hear the application.
The landlord has applied for termination of the tenancy and rent arrears. Background
This tenancy started in January 2023. It is a periodic tenancy.
On about 2 May 2024 it came to the Landlord’s notice that the tenant was in custody and not living at the premises.
Also, on that day the tenant paid rent up to 8 May. That was the last rent payment he made.
On 24 May the landlord sent the tenant a 14-day breach notice for rent arrears which were then $350.
On 10 June the landlord applied for termination of the tenancy for abandonment by way of the expedited process.
On 11 June Tenancy Services wrote to the landlord stating that their expeditated application had been amended to a standard application and it would be scheduled for a hearing. The reason given was that the tenant was incarcerated and had not willingly abandoned the property.
The hearing took place today, 12 July. Law
Under s61 of the Residential Tenancies Act 1986, the Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. The word “abandoned” is not defined in the Act.
Under s56(1) of the Act 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.
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.
Under s56(2) of the Act the Tribunal may terminate a tenancy where the landlord has applied under s56(1) and at the time of the hearing the application could have been made under s55(1)(a) (at least 21 days rent arrears).
Section 85 of the Act provides that the Tribunal must determine cases according to the general principles of law relating to the case and the substantial merits and justice of the case but shall not be bound to give effect to the strict legal rights and obligations or to legal forms or technicalities. Discussion and Decision
In my view the expedited application should have been referred to an Adjudicator for a decision. Tenancy Services’ decision to list the application for a hearing assumes that a person arrested and held in prison cannot abandon premises for the purposes of the Act. I don’t agree with that, but whether it is correct or not, that is a decision for an adjudicator to make.
It follows that, as see it, I can find that the tenant has abandoned the premises.
One consequence of deciding the application in that way is that the landlord would be limited to recovering rent arrears for the period ending 28 days after the landlord became aware or ought to have become aware that the tenant had abandoned the premises.
The landlord became aware of the abandonment (as they saw it) on 2 May and so they would be limited to recovering rent arrears up to 30 May. The rent arrears since then to today are $2,200. The landlord would therefore be denied the opportunity of recovering those arrears after being denied the opportunity of obtaining an earlier termination under the expedited procedure. I don’t see much justice in that.
The application refers to rent arrears and it followed a breach notice for rent arrears that had expired without being remedied. Although the application does not expressly rely on rent arrears as a ground for termination, the grounds are there for the tenant to see and the application seeks termination. In those circumstances I accept that the application can be amended to include rent arrears as a ground for termination.
I see no injustice to the tenant in doing so. He has not paid rent for nearly eight weeks. He could have offered to surrender the tenancy or given 28 days notice of termination and thereby returned the premises to the landlord and mitigated the rent arrears, but he did not do so.
The landlord has made an application under s56 and today they could have made the application under s55 and so I make this order on the ground that there are 21 days or more rent arrears.
In case I am wrong about that, I am satisfied that it would be inequitable not to terminate the tenancy. The arrears are substantial, well over three weeks of rent, and there seems little prospect of them being paid. The order can therefore be made under s56(2) and thereby s55.
I rely on s85 to the extent necessary.
The landlord provided rent records which prove the amount of rent arrears.
The tenant is not living in the premises and the landlord should be allowed to have possession immediately to mitigate their losses. I have therefore permitted the landlord to do so.
The landlord has succeeded and so the tenant must pay the rent arrears.

Tenancy Tribunal case 4910213 — Rent arrears at 510A Kings Road, Southbridge 7683

At a glance

Tenancy Tribunal case 4910213 — Rent arrears at 510A Kings Road, Southbridge 7683

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions