What was the outcome of Tenancy Tribunal case 4962855?

The tribunal order states: The tenancy of MAHINARANGI MEI ROGERS KAIWAHIA at 5 Gibson

How much money was awarded in case 4962855?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4962855?

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

Where can I read the official tribunal order for case 4962855?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10792908-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4962855?

The tribunal order states: The tenancy of MAHINARANGI MEI ROGERS KAIWAHIA at 5 Gibson

How much money was awarded in case 4962855?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4962855?

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

Where can I read the official tribunal order for case 4962855?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10792908-Tenancy_Tribunal_Order.pdf.

5 Gibson Crescent, Naenae, Lower Hutt 5011 Tenancy Tribunal Case 4962855 — Rent arrears

Order

The tenancy of MAHINARANGI MEI ROGERS KAIWAHIA at 5 Gibson Crescent, Naenae, Lower Hutt 5011 is terminated, and possession is granted to Kāinga Ora–Homes And Communities immediately.
MAHINARANGI MEI ROGERS KAIWAHIA must pay Kāinga Ora–Homes And Communities $7,003.28 immediately, being rent arrears to 28 June 2024.

Reasons

The landlord attended the hearing, conducted via teleconference. Two calls to the tenant went unanswered and to voicemail. After the first call went to voicemail, a brief message was left introducing myself and explaining the purpose of the call. The message concluded with the advice I would try a second time after waiting some minutes. I was satisfied adequate service had completed and I continued with the hearing after the second call also went unanswered.
The landlord has applied for termination of the tenancy for abandonment, or in the alternative, termination of the tenancy for breach of the tenant’s obligations.
The application was submitted on 6 August 2024.

Should the tenancy be terminated?

The Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. See section 61 Residential Tenancies Act 1986 (“RTA”). A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.
On 21 June 2024 the landlord became aware (or ought to have been aware) that the tenant had abandoned the premises.
On this date an inspection was conducted following a notice to return that had been served on the tenant on 4 June 2024, advising she had to return by 21 June 2024.
Prior indications of a change in the tenant circumstances were evident.
On 30 April 2024, MSD advised the landlord via email that: Address: 5 Gibson Crescent, Naenae, Lower Hutt, 5011, New Zealand Date of change in circumstances:16/01/2024 1

WHAT HAS CHANGED

The Ministry is disclosing this information in accordance with Principle 11(a) of the Privacy Act 2020 Reason for change: - No longer residing in the property

This email (undated) was followed internally with an email to the local agent. It read, in part: We have received the below notification from MSD. As this is a sole signatory tenancy – please progress with ending the tenancy OR advise if there is potential for a Tenancy Takeover. For a Tenancy Takeover please send through the necessary template to Interagency to be processed.
At this time rent arrears was already well over 21 days. Any rent payments made were intermittent, of variable amounts but always less than due. These payments ceased on 30 May 2024.
There have been multiple attempts to engage with the tenant over this time with no success. Photos provided evidence a premises that appear to be furnished but lacking sign of occupation. The electricity is still being supplied which indicates ongoing payments for that. 1 I have considered this date as incorrect. If it is correct, the delay between that date and the email to the landlord is concerning.
As far as abandonment goes, this is less obvious that typical. However, having reviewed the photos and evidence, I consider it more than likely that the tenant has left without advising the landlord.
Because the premises have been abandoned, and rent is in arrear, the tenancy is terminated immediately. Even if I am wrong, I consider alternate grounds for termination exist.

Further grounds?

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 return to the premises.
The landlord served a 14-day notice on the tenant on 4 June 2024, and the tenant did not remedy the breach within the required period.
It would be inequitable to refuse to terminate the tenancy because it appears more likely than not that the tenant is not living at the premises. The rent arrears are significant and growing. Further, given its lack of utility at present, returning the premises into the pool of available social housing will assist others in need.
This tenancy could equally be terminated per s 56 RTA.

How much does the tenant owe?

The landlord provided rent records which prove the amount owing at the end of the tenancy. The amount claimed was included 28 days rent in lieu of notice. The total sought by the landlord was $8,569.00, based on first being aware on the abandonment on 21 June 2024 and seeking rent in lieu of notice.
Section 49 RTA requires where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The District Court recently confirmed there is a duty to mitigate for rent arrears. In Huang v Ashworth [2024] NZDC 15726 it confirmed the question is one of fact, what did the landlord do to limit their loss in rent. If not enough, then mitigation is required for any rent arrears order.
In this matter, weekly rent increased dramatically from $142.00 to $522.00 from 21 March 2024. MSD advised the landlord the tenant was no longer residing at the premises on 30 April 2024. Rent was already significantly in arrears and accelerating under the increased rent at this time.
The notice to return was not served on the tenant until almost five weeks later, on 4 June 2024.
On 21 June 2024 an inspection confirmed what appears to be a continued vacancy. However, this application was not lodged until 6 August 2024.
I consider the direction in Huang has application here. Earlier steps would have mitigated the rent arrears now sought (and most likely have made the premises available for reletting earlier). That does not excuse the tenant from her continued lack of engagement with the landlord, nor her not returning when so advised of the need to. However, the landlord had other options under the RTA available to address the situation here, especially given the historic but still growing rent arrears.
Having considered the timelines and steps taken by the landlord, I have adjusted the rent arrears owing downwards to reflect the lack of timely mitigation. I have considered the 14-day notice could have been served within 10 days of the MSD notice of the tenant leaving. That leaves a two-week period before an appropriate application for termination under s 56 might have been made. I have allowed a further five weeks for service, lodgement and scheduling of a hearing, based on typically timeframes for such applications at present (this ignores the earlier option open to the landlord of an application for termination under s 55(1); rent arrears being 21 days or more).
This exercise derives an alternate end date for rent arrears of 28 June 2024. Reworking the rent arrears to that date means the final rent arrears is adjusted from $8,569.00 to $7,003.28 and that sum is awarded.

Order

The tenancy of MAHINARANGI MEI ROGERS KAIWAHIA at 5 Gibson Crescent, Naenae, Lower Hutt 5011 is terminated, and possession is granted to Kāinga Ora–Homes And Communities immediately.
MAHINARANGI MEI ROGERS KAIWAHIA must pay Kāinga Ora–Homes And Communities $7,003.28 immediately, being rent arrears to 28 June 2024.

Reasons

The landlord attended the hearing, conducted via teleconference. Two calls to the tenant went unanswered and to voicemail. After the first call went to voicemail, a brief message was left introducing myself and explaining the purpose of the call. The message concluded with the advice I would try a second time after waiting some minutes. I was satisfied adequate service had completed and I continued with the hearing after the second call also went unanswered.
The landlord has applied for termination of the tenancy for abandonment, or in the alternative, termination of the tenancy for breach of the tenant’s obligations.
The application was submitted on 6 August 2024.

Should the tenancy be terminated?

The Tribunal may terminate the tenancy where the premises have been abandoned and rent is in arrear at the hearing date. See section 61 Residential Tenancies Act 1986 (“RTA”). A tenancy is abandoned where the tenant leaves the premises without reasonable excuse, not intending to return or to meet their obligations, and fails to notify the landlord.
On 21 June 2024 the landlord became aware (or ought to have been aware) that the tenant had abandoned the premises.
On this date an inspection was conducted following a notice to return that had been served on the tenant on 4 June 2024, advising she had to return by 21 June 2024.
Prior indications of a change in the tenant circumstances were evident.
On 30 April 2024, MSD advised the landlord via email that: Address: 5 Gibson Crescent, Naenae, Lower Hutt, 5011, New Zealand Date of change in circumstances:16/01/2024 1

WHAT HAS CHANGED

The Ministry is disclosing this information in accordance with Principle 11(a) of the Privacy Act 2020 Reason for change: - No longer residing in the property

This email (undated) was followed internally with an email to the local agent. It read, in part: We have received the below notification from MSD. As this is a sole signatory tenancy – please progress with ending the tenancy OR advise if there is potential for a Tenancy Takeover. For a Tenancy Takeover please send through the necessary template to Interagency to be processed.
At this time rent arrears was already well over 21 days. Any rent payments made were intermittent, of variable amounts but always less than due. These payments ceased on 30 May 2024.
There have been multiple attempts to engage with the tenant over this time with no success. Photos provided evidence a premises that appear to be furnished but lacking sign of occupation. The electricity is still being supplied which indicates ongoing payments for that. 1 I have considered this date as incorrect. If it is correct, the delay between that date and the email to the landlord is concerning.
As far as abandonment goes, this is less obvious that typical. However, having reviewed the photos and evidence, I consider it more than likely that the tenant has left without advising the landlord.
Because the premises have been abandoned, and rent is in arrear, the tenancy is terminated immediately. Even if I am wrong, I consider alternate grounds for termination exist.

Further grounds?

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 return to the premises.
The landlord served a 14-day notice on the tenant on 4 June 2024, and the tenant did not remedy the breach within the required period.
It would be inequitable to refuse to terminate the tenancy because it appears more likely than not that the tenant is not living at the premises. The rent arrears are significant and growing. Further, given its lack of utility at present, returning the premises into the pool of available social housing will assist others in need.
This tenancy could equally be terminated per s 56 RTA.

How much does the tenant owe?

The landlord provided rent records which prove the amount owing at the end of the tenancy. The amount claimed was included 28 days rent in lieu of notice. The total sought by the landlord was $8,569.00, based on first being aware on the abandonment on 21 June 2024 and seeking rent in lieu of notice.
Section 49 RTA requires where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The District Court recently confirmed there is a duty to mitigate for rent arrears. In Huang v Ashworth [2024] NZDC 15726 it confirmed the question is one of fact, what did the landlord do to limit their loss in rent. If not enough, then mitigation is required for any rent arrears order.
In this matter, weekly rent increased dramatically from $142.00 to $522.00 from 21 March 2024. MSD advised the landlord the tenant was no longer residing at the premises on 30 April 2024. Rent was already significantly in arrears and accelerating under the increased rent at this time.
The notice to return was not served on the tenant until almost five weeks later, on 4 June 2024.
On 21 June 2024 an inspection confirmed what appears to be a continued vacancy. However, this application was not lodged until 6 August 2024.
I consider the direction in Huang has application here. Earlier steps would have mitigated the rent arrears now sought (and most likely have made the premises available for reletting earlier). That does not excuse the tenant from her continued lack of engagement with the landlord, nor her not returning when so advised of the need to. However, the landlord had other options under the RTA available to address the situation here, especially given the historic but still growing rent arrears.
Having considered the timelines and steps taken by the landlord, I have adjusted the rent arrears owing downwards to reflect the lack of timely mitigation. I have considered the 14-day notice could have been served within 10 days of the MSD notice of the tenant leaving. That leaves a two-week period before an appropriate application for termination under s 56 might have been made. I have allowed a further five weeks for service, lodgement and scheduling of a hearing, based on typically timeframes for such applications at present (this ignores the earlier option open to the landlord of an application for termination under s 55(1); rent arrears being 21 days or more).
This exercise derives an alternate end date for rent arrears of 28 June 2024. Reworking the rent arrears to that date means the final rent arrears is adjusted from $8,569.00 to $7,003.28 and that sum is awarded.

Tenancy Tribunal case 4962855 — Rent arrears at 5 Gibson Crescent, Naenae, Lower Hutt 5011

At a glance

Tenancy Tribunal case 4962855 — Rent arrears at 5 Gibson Crescent, Naenae, Lower Hutt 5011

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

WHAT HAS CHANGED

Further grounds?

How much does the tenant owe?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

WHAT HAS CHANGED

Further grounds?

How much does the tenant owe?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions