What was the outcome of Tenancy Tribunal case 4972313?

The tribunal order states: The term of the fixed-term tenancy of Richard Frylinck and Shayne Frylinck at 6

How much money was awarded in case 4972313?

Tamaki, Auckland 2013 Is Reduced And…: $4,600.00 awarded to landlord

What type of tenancy dispute was case 4972313?

The dispute type was not classified.

Where can I read the official tribunal order for case 4972313?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11109463-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4972313?

The tribunal order states: The term of the fixed-term tenancy of Richard Frylinck and Shayne Frylinck at 6

How much money was awarded in case 4972313?

Tamaki, Auckland 2013 Is Reduced And…: $4,600.00 awarded to landlord

What type of tenancy dispute was case 4972313?

The dispute type was not classified.

Where can I read the official tribunal order for case 4972313?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11109463-Tribunal_Order.pdf.

6 Shankill Place, East Tamaki, Auckland 2013 Tenancy Tribunal Case 4972313 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4972313. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Tamaki, Auckland 2013 is reduced and ended at midnight on 3 September 2024. 2. Richard Frylinck and Shayne Frylinck must	$4,600.00		Tamaki, Auckland 2013 is reduced and ended at midnight on 3 September 2024. 2. Richard Frylinck and Shayne Frylinck must

Claims and awards in Tenancy Tribunal application 4972313. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Tamaki, Auckland 2013 is reduced and ended at midnight on 3 September 2024. 2. Richard Frylinck and Shayne Frylinck must	$4,600.00		Tamaki, Auckland 2013 is reduced and ended at midnight on 3 September 2024. 2. Richard Frylinck and Shayne Frylinck must

Order

The term of the fixed-term tenancy of Richard Frylinck and Shayne Frylinck at 6 Shankill Place, East Tamaki, Auckland 2013 is reduced and ended at midnight on 3 September 2024.
Richard Frylinck and Shayne Frylinck must pay Ivan Sevic $4,600.00 immediately as reasonable compensation for reduction of the fixed-term tenancy.

Reasons

Both parties attended the hearings on 29 October and 22 November 2024.
On 7 May 2024, the parties signed a residential tenancy agreement for a fixed term from 30 May 2024 to 30 May 2025. The agreement was a renewal of a tenancy which began on 30 May 2022 at a weekly rent of $840.00. The weekly rent for the renewal was $920.00.
The tenants met with the landlord on 2 August 2024 and told him they were in financial difficulty. They were going to break the lease based on hardship. The tenants were planning on moving in 4 weeks to rent a bigger house with the tenant’s sister to share costs. The tenants advised the landlord that they had found a 6-bedroom property at $960.00 per week.
The landlord proposed that the tenant rent a nearby house that he also owns, which had been designed to accommodate two families. The landlord and tenant inspected this property, but the tenants advised they could not afford the increased rent of $1,100.00 per week.
The landlord and tenant discussed the procedure for breaking the lease. The landlord said the tenants should find a replacement tenant. He advised that the prospective tenant had to be a family with “sufficient and regular income” and be approved by the landlord.
On 5 August 2024 the tenants emailed the landlord, advising of their intention to break the lease. The tenants said they would be vacating the premises on 3 September 2024. They recorded their understanding that it was their responsibility to find replacement tenants, and they had already contacted the letting agent.
The tenants sent a further email on 15 August 2024. The tenants said section 12 of the Residential Tenancies Act 1986 (the Act) was relevant to their situation: We believe that denying us the opportunity to assign the lease to suitable candidates, who have good credit, strong references, and are comparable to our family, is placing us in a position of financial hardship.
On 16 August 2024 the tenants applied to the Tribunal requesting they be released from the tenancy.
The tenants emailed the landlord on 26 August 2024, again advising that they were vacating on 3 September 2024. The keys would be left in the post box for collection.
On 25 October 2024, the letting agent advised that they had received 6 applications to rent the premises. Of these, 3 had been rejected by the owner, 1 application had been withdrawn, and 1 had been rejected by the letting agent. A further applicant stopped responding.
The rent has been paid up to 3 September 2024. As at the hearing on 22 November 2024, the premises have not been relet. Relevant Law
Pursuant to section 66 of the Residential Tenancies Act 1096 (the Act) the Tribunal may reduce a fixed term tenancy where: • There has been an unforeseen change in the applicant’s circumstances; and • There would be severe hardship to the applicant if the term is not reduced; and • The applicant’s hardship would be greater than the hardship to the other party if the term is reduced.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss (section 66(2)). As noted in Bickerton v Lott (District Court Wellington, TT No 756/00, 21 December 2000, Chief Judge Young) section 66 is designed to lessen the effect of a fixed term tenancy, but “...it is not designed to allow tenants to walk away from their responsibilities without considering compensation for the landlord”.
Pursuant to section 43B of the Act, a tenant may assign the tenancy with the prior written consent of the landlord and in accordance with any reasonable conditions attached to that consent by the landlord.
If a tenant makes a written request for the landlord’s consent to an assignment and the request identifies the proposed assignee, the landlord must respond in writing to the request within a reasonable period. The landlord must not withhold consent unreasonably or attach any unreasonable conditions to the consent.
Pursuant to section 44(3) of the Act, the landlord must not unreasonably withhold consent to the tenant parting with possession or attach any unreasonable conditions to their consent. Analysis
The tenants explained that they decided to break their lease because they could no longer afford the premises. They wanted to move to a new property where the rent would be shared with other family members. As I understand the position, they are paying about a third of the weekly rent of $980.00 for their current home.
One of the tenants was made redundant on 1 September 2023. She found a new job at the end of January 2024. The tenant had been on the waiting list for surgery for 3 years. The surgery was performed on 24 April 2024. She then had to take 6 weeks off work unpaid. The tenant’s recovery was slower than expected, which created further emotional stress.
The landlord said the tenants would have known if they were in hardship when they signed the renewal of the tenancy agreement on 7 May 2024. The tenants had an opportunity to move into a new place that was suitable for their budget before they signed the renewal. The landlord said when the tenants met with him on 2 August 2024, they had already decided to move into a house with another family member. In his written statement, the landlord said the tenants’ rejection of his offer to rent them a different property was a “red flag”, showing their motive was financial benefit, not financial hardship.
In a sense, the need for surgery was not an unforeseen change of circumstances, given the operation was going to proceed at some stage. But the precise timing could not be foreseen, and the enforced 6 weeks of recovery came soon after a lengthy period of unemployment. It can be inferred that, during those 6 weeks, the tenant’s recovery would have been a priority. This was also the period when the renewal was signed.
I accept that there was an unforeseen change of circumstances for the tenants. Their financial ability to continue meeting their rent obligations was unexpectedly impacted by redundancy and then an operation. Perhaps they should, as the landlord argued, have realised on 7 May 2024 that they could no longer afford the tenancy. But they carried on for 3 months and it does not change the fact that their financial situation had worsened unexpectedly.
The next issue is whether the tenants will suffer severe hardship if the tenancy is not reduced. The rent of $920.00 is above the average rent for Auckland. Based on the Tenancy Services website, it is higher than the upper quartile rent of $900.00 for a 4-bedroom property in East Tamaki Heights, an adjacent and slightly more expensive suburb. That is not to suggest the rent was excessive, just that it was a higher rent. It is entirely plausible that both tenants needed to be working to afford the rent. Further, it can be inferred from the weekly rent the tenants are now paying that this reflects their ongoing financial capacity (i.e., their difficulties were not temporary).
The landlord placed emphasis on the need for there to be severe hardship, not just hardship. I acknowledge that the tenants did not provide detailed evidence of their financial position, their earnings, or outgoings. However, I consider that requiring the tenants to pay rent of $920.00 per week from when they left on 4 September 2024 to the end of the fixed term tenancy on 30 May 2025 (38 weeks and 3 days) totalling $35,354.29 would likely cause severe hardship. It would require the tenants to fund both their current accommodation and their previous home for an extended period. I am satisfied that the tenants would suffer severe hardship if the term of the tenancy were not reduced.
The landlord said he has been caused hardship, although he did not elaborate. The landlord owns at least 2 rental properties. There is limited information, but I consider that the tenants’ hardship would probably be greater than the landlord’s if the tenancy is not reduced.
As to compensation for loss to the landlord, the landlord said it usually takes at least 2 weeks to get a property ready for new tenants. Both parties provided evidence of advertising. The tenants posted their own Facebook advert on 2 August 2024. It is evident that the landlord started advertising for replacement tenants very soon after the tenants told him they were leaving. A Trade Me advertisement was placed by the letting agent on 5 August 2024.
The landlord said the tenants did not leave the premises in good condition, which hindered finding new tenants. The evidence does not support this being the reason why the premises have not been relet. The photographs provided by the tenants and the images in the advertisements show neat grounds and a reasonably clean presentation internally. There is no indication that the property manager (who has conducted viewings) was dissatisfied with the condition of the premises.
Because of the landlord’s belief that the tenants remain liable for rent, for monitoring the security of the property, and for garden maintenance and lawn mowing, the grounds of the property have become very overgrown. The practical reality is that the tenants have left and are not coming back, and the condition of the grounds may discourage prospective tenants in a rental market that the landlord believes has slowed down recently.
The tenants took a risk deciding to break the fixed term and leave before new tenants were available. I am not satisfied that they abandoned the premises. They told the landlord they were leaving and gave about a month’s notice. They left the keys in the letter box. The tenants are in breach of contract but in my view, they did not abandon the premises.
There is an email from the property manager dated 25 October 2024 giving details about the marketing. There had been approximately 25 viewings by different groups. The property manager received six applications; three of these were rejected by the owner, and one was rejected by the property manager. One application was withdrawn, and one applicant failed to respond to questions.
The landlord gave details concerning the three applications they rejected. The first applicants were two students from university, one of whom had temporary work. The landlord was concerned that they had earned less over 7 months than the rent payable for 6 months.
The second applicant was a single mother with a benefit of $880.00 per week for housing. The landlord requested confirmation from WINZ that the increased cost of accommodation would be funded. The landlord said no response was received.
The third applicants were a large family with a weekly income of $1,050.00. They were paying $480.00 per week for accommodation. WINZ were asked whether they would support the increased rental. The landlord said they were still waiting for this confirmation.
The landlord was unsure why the property manager had rejected one of the applicants. He thought the property manager may have had concerns that the tenants would engage in antisocial behaviour (loud music).
The tenants submitted that the landlord had unreasonably withheld consent to prospective tenants they had introduced. As discussed above, the tenants did not request the landlord’s consent to a specific tenant. The task of marketing the premises was delegated to the property manager. In the circumstances, I consider there has been no failure by the landlord to comply with section 43B of the Act.
A landlord must not unreasonably withhold consent to an assignment or parting with possession by the tenant. The evidence does not establish that the landlord unreasonably rejected any application by prospective tenants. To protect his interests, the landlord was entitled to verify that applicants had sufficient income to pay the rent.
This is a case which requires the Tribunal to strike a difficult balance between the parties’ competing interests. I consider that the tenants should take responsibility for their decision to break the fixed term. It is a relevant factor that they had just signed a further fixed term. In their favour, they gave the landlord about a month’s notice, which is the notice period for a periodic tenancy. I also consider that the landlord ought to have taken steps to maintain the grounds of the premises before they became so overgrown. The state of the rental market may have been the reason why the premises could not be re-let initially, but at this stage, I consider the condition of the premises is probably a factor. After considering all the circumstances, I award the landlord compensation of 5 weeks rent, an award of $4,600.00. This means that the landlord had about 9 weeks in which to find new tenants, which even in a slow market I consider was a reasonable time.
I have considered whether the tenants are liable to pay the break lease fee of $1,518.00 pursuant to an invoice dated 1 August 2024. This appears to have been backdated, because it is dated prior to the tenants informing the landlord of their decision to vacate. Currently, it is not itemised as required by section 44A of the Act, and there was no cross-application from the landlord. I make no order about the break lease fee. I understand there is a bond of $3,360.00 at the Bond Centre. The application did not seek a bond refund. I make no order about the bond. The parties may wish to agree to apply it towards the award of compensation. Filing fee and name suppression
The tenants have succeeded in their application to reduce the fixed-term tenancy, although the landlord has been awarded compensation. I consider it is appropriate that the parties bear their own costs.
The tenants sought suppression. They have not been “wholly or substantially” successful as required by section 95A. I decline suppression.

Tenancy Tribunal case 4972313 — Tenancy dispute at 6 Shankill Place, East Tamaki, Auckland 2013

At a glance

Tenancy Tribunal case 4972313 — Tenancy dispute at 6 Shankill Place, East Tamaki, Auckland 2013

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Frequently asked questions