Published tribunal order
Tenancy Tribunal case 4923133 — Rent arrears at 8 Carleton Terrace, Tawa, Wellington 5028
Decided 6 Aug 2024 · Published 6 Aug 2024 · Application 4923133
Landlord favoured
- Rent arrears
Order
- The tenancy of Evelina Fifineiki Mohe at 8 Carleton Terrace, Tawa, Wellington 5028 is terminated, and possession is granted to Tawa Realty Limited, at 11:59, 11 August 2024.
- Evelina Fifineiki Mohe must pay Tawa Realty Limited $10,470.44 immediately, being rent arrears as calculated below.
Reasons
- Both parties attended the hearing. Ms Angela Lawrence represented the current landlord and the former landlord, the owner.
- The landlord has applied for termination of the tenancy for breach of the tenant’s obligations relating to rent arrears.
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 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 tenant has breached their obligations by failing to pay rent and does not dispute this. The landlord has provided records of the total rent amount through to 4 August 2024 of $23,842.86.
- The landlord served a 14-day notice on the tenant on 17 May 2024, and the tenant did not remedy the breach within the required period.
- It would be inequitable to refuse to terminate the tenancy because for a significant portion of the tenancy there has been a persistent failure to pay rent and it is unlikely that the tenant would be able to comply with their obligations to pay rent in the future. In addition, the amount of unpaid rent is significant, and termination is a proportionate response to the breach.
- Due to the amount of rental arrears, I note that the landlord would also have grounds to terminate under s55, as the rent is at least 21 days in arrears at the hearing date. See sections 55 and 56(2) Residential Tenancies Act 1986.
- The tenancy is terminated. Possession date
- I have granted possession to the landlord on 11 August 2024. I cannot know whether the tenant will leave the property before this date. The tenant remains liable for ongoing weekly rent until the property is vacated.
How much does the tenant owe?
- The tenancy commenced in February 2022.
- The landlord has provided records of the outstanding rental amount through to 4 August 2024 of $23,842.86. This is comprised of rental arrears of $22,500 when the property was managed by the owner and a further $1,342.86 when a property management company, the landlord, took over.
- I have considered whether Ms Mohe should pay the full amount of arrears.
- There is an obligation under section 49 of the Residential Tenancies Act 1986 that landlords mitigate their loss. Based on the information provided to me, it appears as though the owner took no formal steps to mitigate the loss and no steps were taken until April of 2024 when the landlord took over. At this time, no payments had been made since June 2023, and over 40 weeks of rental arrears had accrued.
- At the hearing, the landlord confirmed that no formal steps had been taken by the owner in respect of the rent arrears. I was advised that the owner has a family connection with the tenant, and I have inferred from this that it may have impacted how the owner approached the rental arrears.
- Despite that, I am satisfied that on the balance of probabilities there was a failure by the landlord to mitigate their losses. The landlord could have applied to end the tenancy as early as August 2023 based on the rental arrears at that time.
- I have decided that the tenant will be liable for rent to 1 November 2023, amounting to $10,450.00. This takes into account when the landlord could have applied to end the tenancy, but also with some consideration of the family connection and how this could have reasonably impacted the landlord’s approach to the outstanding rental arrears. The approach I have taken to reduce the rental arrears for failure to mitigate is consistent with the decision of Huang v Ashworth [2024] NZDC 15726. Filing fee
- As the landlord has been substantially or wholly successful, I have also awarded the filing fee. R Harvey-Lane 06 August 2024