What was the outcome of Tenancy Tribunal case 4945564?

The tribunal order states: Colby Dale Veenman, Christian James Parnell and Vivien Lochem must pay

How much money was awarded in case 4945564?

Rent Arrears: $16,816.43 awarded to landlord

What type of tenancy dispute was case 4945564?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4945564?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11060442-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4945564?

The tribunal order states: Colby Dale Veenman, Christian James Parnell and Vivien Lochem must pay

How much money was awarded in case 4945564?

Rent Arrears: $16,816.43 awarded to landlord

What type of tenancy dispute was case 4945564?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4945564?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11060442-Tenancy_Tribunal_Order.pdf.

209 The Terrace, Wellington Central, Wellington 6011 Tenancy Tribunal Case 4945564 — Rent arrears

Claims and awards in Tenancy Tribunal application 4945564 — net $14,221.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at 11 November 2024	$16,816.43	Rent arrears as at 11 November 2024
Net award	$14,221.43
Total payable by Tenant to Landlord	$14,221.43

Claims and awards in Tenancy Tribunal application 4945564 — net $14,221.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as at 11 November 2024	$16,816.43	Rent arrears as at 11 November 2024
Net award	$14,221.43
Total payable by Tenant to Landlord	$14,221.43

Order

Colby Dale Veenman, Christian James Parnell and Vivien Lochem must pay Property Management Wellington $14,221.43 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,595.00 (5229086-010) to Property Management Wellington immediately.
This tenancy termination date is varied to now end at 5pm Wednesday 22 January 2025, unless prior through a new tenancy commencing, or any mutual agreement between the parties.

Reasons

Both parties attended the hearing. Of the three tenants, Vivien Lochem did not attend. He is overseas.
The tenants have applied for a reduction of the fixed-term tenancy, due to end on 24 January 2027.
The landlord has applied for rent arrears, and a refund of the bond. No termination was sought.
The tenants have vacated the premises (approximately 22 July 2024). One tenant had left earlier, departing overseas. Background
The three tenants met while studying or socially. They agreed to form a tenancy together. While they met in or via student hall accommodation, they were older than the usual first year students who typically reside in a hall before moving into rental premises after that first study year.
The tenancy commenced on 4 November 2023 with the fixed-term end date established in the tenancy agreement as 24 January 2027.
Early in the tenancy there were issues with rent being paid as due by some tenants. Separately but equally early after the tenancy commenced, Colby claims his parents raised with him concerns about the long fixed-term period once they became aware of it. He stated he then discussed an amendment/reduction with the landlord. He stated he was told not to worry about it and if an earlier break was required that could be arranged, or words to that effect. That landlord was not the one present at the hearing so no meaningful response to this claim by the respondent could be made.
On 24 May 2024 Vivien told the landlord he was leaving. An assignment form was sent but never returned.
Limited attempts by the tenants at firstly finding a replacement tenant, and later a full replacement of tenants for the flat, were unsuccessful. A no-cost approach using Facebook group notices was adopted.
On 20 June 2024, Christian advised the landlord that Vivien had left the month prior. The landlord was also advised that Colby was “finding somewhere else”. The assignment form was eventually signed and returned to the landlord on 29 July 2024.
The remaining two tenants had vacated by this time and the landlord commenced marketing the premises. It remains vacant. Low tenant interest has been addressed by the landlord through refreshed advertising and an aggressive reduction in rent (from $865 to $715). Efforts continue.

Should the tenancy be reduced per s 66 Residential Tenancies Act 1986?

It is only in limited circumstances that a court or tribunal will interfere with a fixed-term tenancy. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986 (“RTA”), which allows for the reduction of fixed term tenancy agreements. In this matter, I also considered possible orders for variation of the agreement under section 78 (f) and (g) RTA, regarding the formation of the agreement and the key contract term of the three year plus fixed-term.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances b. the change was unforeseen c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
The Tribunal has held that it cannot reduce the term of a fixed-term tenancy on the application of one of several co-tenants (Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN). While Vivien Lochem did not attend, I have no indication from him that he opposes the tenant application here.
The weighing of relative hardship is a question of fact to be assessed objectively in each case.
In this instance, the collapse of the tenancy is considered to have come from one tenant leaving overseas (returning to his native France) and financial hardship of another. Neither are seen as changes that could not have been foreseen. Although mental health issues were also raised by one tenant, no supporting medical evidence was provided and I do not find that proven. I do not consider any change in tenant circumstances as raised in this application could be deemed unforeseeable. Given that, there may no consideration of the relative severity of hardship.
I heard from the tenants that they firstly advertised for a replacement tenant/flatmate using Facebook groups. Subsequently, when that failed, they attempted to relet the full premises, using the same no-cost marketing approach as before. That too was unsuccessful.
Only from 29 July 2024 was the landlord formally engaged to find a new tenancy. This has not been successful to date. The rent asked for has dropped from $865.00 to $715.00 and the premises are listed on appropriate commercial tenancy websites.
I do not consider the tenants have established grounds for any reduction in the fixed-term under s 66 RTA.
The landlord has attempted to mitigate its loss as required in s 49 RTA, some cancellations of open homes notwithstanding. I then turned my mind to other considerations of any statutory basis for a variation as sought by the tenants. Should the tenancy be reduced per s 78 (f) or (g) Residential Tenancies Act 1986?
Section 78 establishes what orders the Tribunal may make. It states (in part): (1) Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make 1 or more of the following orders: (f) where it appears to the Tribunal that an agreement between the parties, or any term of any such agreement, is harsh or unconscionable, or that any power conferred by an agreement between them has been exercised in a harsh or unconscionable manner, an order varying the agreement, or setting it aside (either wholly or in part): (g) where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part):
I am also mindful that when considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.
I am satisfied the tenants were capable adults who knowingly entered into the tenancy agreement. I do however have concerns regarding how the fixed-term period was struck at just over three years, albeit they selected “longer than twelve months” in their applications. Having heard the various submissions I consider it more likely than not that the tenants were concerned about finding a tenancy in a short timeframe. At least one considered that taking a three-year option would assist in being accepted for the tenancy. I have no evidence of any landlord prompting for that. The tenancy agreement clearly records the period but I remain curious why it was extended from a start date in November to conclude in January 2027. It is difficult to understand such an extension over the holiday period as attractive or beneficial to the tenants. I have also considered the claimed discussion between Colby and one of the landlords very soon after the tenancy commenced regarding the term, and a possible reduction. His parental advice should have been sought prior to signing, especially as his mother offered herself as a guarantor for him in a letter dated 22 October 2024. I do accept the timing was relatively tight but there was sufficient time, and I would suggest an obligation, to have his at least his mother review the tenancy agreement prior to signing. With hindsight, the better course may have been an application to the Tribunal at that time if mistake or misrepresentation was to be argued. The early reluctance of the landlord to amend the term indicates to me some investment in the term, rather than any neutral stance regarding tenure, adjusted to any specific tenant need or desire.
As it stands, the tenants are already responsible for a large sum of rent arrears. The amendment to the term as ordered here leaves them potentially exposed for a further ten weeks of rent. They are reminded of their vested interest in assisting the landlord in finding new tenants as soon as possible as there is scant evidence of this since they left the premises.
I have concluded the greater than three-year fixed-term is harsh and should not stand. The tenants have some accountability for this situation but to leave the fixed-term as it stands is, in my mind, unconscionable. I accept it as more than likely one tenant at least raised concerns regarding the contracted term early in the tenancy. Having already completed some tertiary study, a further three years for three individual students, some international, would not appear likely to see out the full period without some change. I consider the landlord possibly influenced the three year and two month fixed-term. This may not have been intentional. The potential for continued tenant liability to January 2027 is harsh as well as unconscionable. I have considered the tardiness of the tenants in reacting to the situation as it became untenable, and since. I also note some “bullish” statements in the tenants’ applications for the tenancy regarding their financial stability and broader capabilities that were not in evidence later. The landlord has made a decent effort to date to find a new tenancy and incurred costs. The failure is considered more a reflection of a change in the local tenancy market than any lack of effort by the landlord.
I have varied the end date of this tenancy to 22 January 2025 per the order above. Filing fee
Both parties have enjoyed some success and I leave each to carry their respective filing costs. Suppression
Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord did not seek suppression.
The tenants requested suppression in their application. They have enjoyed some success to merit consideration of this but I decline to make such an order. I consider that publication is in the public interest and is further justified because of the tenants’ actions, or lack of, to date.

Tenancy Tribunal case 4945564 — Rent arrears at 209 The Terrace, Wellington Central, Wellington 6011

At a glance

Tenancy Tribunal case 4945564 — Rent arrears at 209 The Terrace, Wellington Central, Wellington 6011

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be reduced per s 66 Residential Tenancies Act 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be reduced per s 66 Residential Tenancies Act 1986?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions