What was the outcome of Tenancy Tribunal case 4977490?

The tribunal order states: By consent of the parties, the landlord’s claims against the first respondent

How much money was awarded in case 4977490?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4977490?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4977490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11104021-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4977490?

The tribunal order states: By consent of the parties, the landlord’s claims against the first respondent

How much money was awarded in case 4977490?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4977490?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4977490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11104021-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2, 165 Moxham Avenue, Hataitai, Wellington 6021 Tenancy Tribunal Case 4977490 — Rent arrears

Order

By consent of the parties, the landlord’s claims against the first respondent tenants, Fynn Rees, Connie Ford, Brooke Rhodes, and Ethan Milne are withdrawn with an acknowledgement that those tenants are not liable to the landlord in respect of the claims.
The second respondent tenants, Fynn Rees, Amy McKinley, Connor McRobbie, Oliver Pyatt and Anthony Carley must pay Property Management Wellington Limited $13,088.45 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $2,880.00 (6143349-008) to Property Management Wellington Limited immediately.

Reasons

Both parties attended the hearing with Mr Cooke and Ms Charles representing the landlord and Ms Rees and Mr Pyatt representing the tenants.
The landlord has applied for rent arrears, loss of rent, re-letting costs, exemplary damages for abandonment, cleaning costs, refund of the bond, and reimbursement of the filing fee.
The tenancy was terminated with effect at 12 noon on Thursday 19 September 2024 by order of the Tribunal made under this application on 20 September 2024 (‘the previous order”).
As set out in the previous order, there are some preliminary issues to determine as follows: Which tenants are liable to the landlord; Was the tenancy a two-year fixed term or periodic tenancy; Did the tenants abandon the premises?

Who are the tenants?

A fixed term tenancy between the landlord and the first respondent tenants, Ms Rees, Ms Ford, Ms Rhodes, and Mr Milne, commenced on 19 January 2023 and ended on 19 January 2024. Prior to the expiry of the term, the landlord emailed the tenants on 20 October 2023 advising them of a rent increase that would apply after the term expired and offering an extension of the fixed term for a further one-year, two-year or three-years. The incentive for the longer terms was a reduced rent rate. If the tenants wished to extend the tenancy for a further fixed term, they would need to select their chosen option, sign, and return the extension document to the landlord.
The landlord also explained at the hearing that if the tenants did not choose to extend the fixed term, it would have become a periodic tenancy and the rent increase of $1,050 plus expenses would apply.
The tenants advised the landlord that only Ms Rees wanted to remain as a tenant with new replacement tenants and they requested that the tenancy be assigned to Ms Rees and the replacement tenants (the second respondents). The landlord consented. Ms Rees says she discussed the fixed term options briefly with Mr Cooke and indicated that the two-year term was the most appealing, but she would need to check with the new tenants.
The landlords proceeded to create a mock listing on the Renti app which is a software platform they use to list properties, receive, and process tenant applications, generate tenancy documents, and generally manage the tenancies. By this time they claim that the second respondents confirmed that they wanted a two-year fixed term and the mock listing advertised the weekly rent rate proposed for a two-year fixed term being $1,030 plus expenses of $70pw for power and $5pw for lawns. The second respondents then submitted their applications to Renti through the mock listing page. These were processed by the landlord who then sent Ms Rees an email on 19 January 2024 attaching the extension agreement, a variation of the tenancy agreement to record the change of tenants and a change of tenant bond form. All incoming, continuing and exiting tenants were required to sign the variation of tenancy agreement and change of tenant bond form, The incoming and continuing tenants were required to sign the extension document.
Ms Rees says that this was a 4-bedroom flat and prior to signing the documents she had asked the landlord to confirm that they agreed to a couple in one of the rooms. She says that they did not reply. While she says that she obtained some signatures on the documents, they were not completed by everyone, and she simply forgot about it. The landlord also did not chase the tenants for the documents. However from 20 January 2024, Ms Rees confirms that the second respondents occupied the premises and paid the rent at the rate specified for a two-year fixed term. Furthermore, she ensured that the incoming tenants paid their share of the bond, and she refunded the outgoing tenants with their share of the bond.
The landlord did not discover that the tenancy documents had not been signed until July 2024.
Ms Rees and Mr Pyatt confirmed at the hearing that the second respondents absolutely accept that they are the tenants of the premises from 20 January 2024 onwards. While they did not all sign the necessary tenancy documentation, it was disclosed to them, and they understood the terms; they all contributed to their share of the bond; and they paid the rent rate charged for the two-year fixed term option. I accept that all the elements of a concluded contract are present but for signing the documents. The landlord made an offer of a tenancy to the tenants; it was accepted; consideration was exchanged in that the tenants were granted and took possession of the premises and paid rent, and the terms of the tenancy were disclosed and made clear. Section 13C Residential Tenancies Act 1986 (RTA) provides that no tenancy agreement, or variation or renewal of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing. In the circumstances, I have no trouble finding that the second respondents are liable to the landlord for the tenancy from 20 January 2024 onwards.

Is the tenancy a fixed term or periodic tenancy?

Although the current tenants did not sign the tenancy documentation, I am satisfied that the terms of the extension agreement and variation agreement forwarded to them by the landlord apply and a contract was concluded for a two-year fixed term for the reasons already explained above. I accept that by paying the rent rate offered for a two-year fixed term, they confirmed their agreement to let the premises on that basis. Ms Rees was also candid in acknowledging at the hearing that the tenants paid the rent rate which applied for the two-year fixed term.
The tenants obtained some legal advice during the tenancy and a lawyer who Ms Rees spoke to emailed the landlord on 12 July 2024 purporting to give 28 days’ notice on behalf of the tenants to end the tenancy. He argued that because the tenants had not signed any documentation, the tenancy had become a periodic tenancy terminable by notice. However, my finding is that the tenancy was for a two-year fixed term. I am also satisfied, based on the email exchanges presented in evidence, that the landlord clearly advised the tenants and their lawyer that the landlord considered the tenancy to be a two-year fixed term which could not be terminated by 28 days’ notice and the notice was not accepted. It appears that the tenants received advice that they were entitled to rely on the 28-day notice and vacate the premises when the notice period expired. However, that is not the case.

Did the tenants abandon the premises?

Section 61 RTA is concerned with what happens when a tenant abandons premises. Although not defined in the RTA “abandonment” in the residential context has been described as follows: 1 “An abandonment occurs when a tenant unlawfully departs the premises with no intention of returning and no intention of honouring his or her obligation under the lease.”
On or about 11 July 2024, the landlord advised the tenants that the tenancy documents had not been signed. They emailed further copies of the documents for signing. Ms Charles then telephoned Ms Rees to discuss the situation. During this call, Ms Rees mentioned that the tenants were looking to move out because of concerns about neighbouring tenants interfering with their privacy and quiet enjoyment. Ms Charles offered to follow up on the complaint about the neighbouring tenants. Ms Charles also explained that the tenants could not just leave but also mentioned the break lease process, whereby the tenants could advertise and find replacement tenants. She noted that the rental market was weak, and they may have difficulty find replacement tenants. Ms Rees said she would talk to her flatmates and advise the landlord what they decided to do. However, the next communication on 12 July 2024 was from the lawyer acting for the tenants purporting to give a 28-day notice to terminate the tenancy. 1 Anforth, Christenson, Taylor, Residential Tenancies Law and Practice New South Wales, 5 th ed, The Federation Press, Sydney, 2011 at [2.106.1]. See also Evans v Cantwell TT 920/90, Christchurch, where the Tribunal suggested that “abandonment” connotes first, the broad meaning of going away without intending to return; and secondly, a breach of obligations or some other element of irresponsibility such as non-payment of rent, or failure to give notice of termination. Both references are cited in Grinlinton, Residential Tenancies: The Law and Practice, 4th ed Lexis Nexis, Wellington, 2012 at [6.26]
As already referenced above, there were several emails between the landlord, Ms Rees and the lawyer. The landlord explained that the tenancy was a fixed term and that they did not accept the 28-day termination notice. The landlord also explained in at least three emails that the tenants could take advantage of the break lease process and they sent through the procedure in an email to Ms Rees on 26 July 2024. The extension document also specified that where tenants opted for a two or three-year lease extension the landlord would allow them to break the lease early at no charge provided the tenants took responsibility for advertising and finding replacement tenants.
Ms Rees says that the process for breaking the lease was not made clear and that is why she sought legal advice. She says that she advised the landlord that the tenants would be happy to pay a fee for the landlords to find replacement tenants, but the landlord did not explain the break lease options to the tenants properly. Ms Rees also says that the tenants would have been happy to find replacement tenants themselves had they known that was an option. In the end, the tenants relied on the 28-day notice to terminate the tenancy given on their behalf by their lawyer, and vacated the premises after that notice expired.
After carefully considering all the available evidence and the communications between the parties, I find that the landlord clearly communicated to the tenants and their lawyer that the tenancy was a fixed term; that the landlord did not accept the 28-day termination notice; and, that the tenants could use the break lease process to find replacement tenants. They also clearly advised the tenants of the terms of the break lease process. However, the tenants did not take any steps to find replacement tenants; and nor did they ask the landlord to find replacement tenants. The tenants stopped paying rent and vacated the premises on 19 August 2024.
I am satisfied that there was no agreement to surrender the tenancy to the landlord, nor any agreement to release the tenants from the fixed term tenancy. The tenants did not ask the landlord to find replacement tenants and charge the tenants their reasonable expenses for doing so and nor did the tenants take steps to find replacement tenants, despite the landlord advising them of the process for doing so. Therefore, the tenants were in breach of the fixed term tenancy when they left the property and stopped paying rent before the expiry of the fixed term. I am satisfied that this amounts to an abandonment of the premises.

What is owed for rent arrears and re-letting the property?

Section 61(3) RTA provides that a tenant who abandons the premises shall be liable to pay rent, in the case of a fixed term tenancy, up to and including the date of the expiry of the term or the date of commencement of a new tenancy of the premises, whichever is the earlier.
After the Tribunal terminated the tenancy with effect on 19 September 2024, the landlord was able to relet the premises from 25 October 2024. I am satisfied that the tenants are therefore liable to pay rent up to and including 24 October 2024.
The landlord provided rent records that prove the amount owed. Rent included a fixed rate of $70pw for electricity usage. Given that the tenants vacated the premises on 19 August 2024, I consider (and the landlord accepts), that they are not liable for electricity expenses after that date. A credit of $630 (equivalent to 9 weekly payments of $70 for electricity) is therefore applied.
The landlord also produced a record of their time and costs involved for re- letting the premises. The parties agreed to reduce the amount claimed to reflect lower hourly rates that were disclosed to the tenants. The parties agree that a charge of $809.31 is reasonable.

Is the landlord entitled to loss of rent?

The landlord says that the current rental market has weakened, and rents have reduced. Therefore, they accepted a lesser rent to secure a replacement tenant and minimise any further loss. They seek the projected loss of rent which will accumulate up until the date this tenancy was due to expire on 19 January 2026.
I cannot award projected loss of rent because the loss has not yet occurred and there are many variables that might affect any future loss. For example, it is entirely possible that the next tenants might break their tenancy and, if the market improves, the landlords might be able to a command a higher rent such that there is no loss in future.
However, it was not necessary to consider the issue further because the landlord agreed to withdraw the claim on the basis that the tenants agreed to pay for the landlord’s re-letting costs and the end of tenancy cleaning costs. Cleaning costs
At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v).
The tenants agrees that some further cleaning was required at the end of the tenancy and accept the cleaning costs claimed.

Should the tenants pay exemplary damages for abandonment?

The landlord claims exemplary damages for abandonment of the tenancy. Section 61(5) RTA confirms that a tenant commits an unlawful act if they abandon the tenancy without reasonable excuse, when the rent is in arrears. The maximum level of exemplary damages for abandonment of premises is $1,500.00. See section 61(5) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The tenants say that they left the property because of problems with neighbouring tenants breaching their privacy and quiet enjoyment of the premises. However, they acknowledge at the hearing that they only mentioned the problems briefly in a phone call with Ms Charles on 11 July and not long afterwards they started the process of moving out. I am not satisfied that the complaints they raised could be a basis for terminating the tenancy before giving the landlord an opportunity to investigate and rectify the issue. Ms Charles advised Ms Rees that she was happy to address the matter and speak to the neighbours. However, the tenants did not allow any time for doing so, nor make a formal complaint with specific details of the incidents and when they occurred before moving out
The tenants have also not adequately explained why they did not ask the landlord to find replacement tenants or take steps themselves to find replacement tenants. It appears that they did not take notice of the many emails sent to them and their lawyer which outlined this option.
After carefully considering all the factors, I am not satisfied that the tenants have presented a reasonable excuse for abandoning the tenancy. Therefore I find that they have committed an unlawful act under s61(5) RTA.
I also find that the unlawful act has been committed intentionally. Intention is proved where the party turns their mind to the unlawful act and deliberately sets out to commit the act. It is unnecessary to prove that the party intended to act unlawfully, it is enough that they intended to commit the act which is in fact unlawful. The same principle applies where the party fails to carry out a legal requirement. Even if the party is unaware of the obligation they have failed to perform, ignorance of the law is no defence. They are deemed to know the law, and therefore failure to perform the obligation is considered intentional. Also, if the party is wilfully blind to the factual circumstances that give rise to an unlawful act, this may also be sufficient to prove they acted intentionally.
I am satisfied that the matter of intention has been proved.
There is a strong interest for landlords in not having a tenancy abandoned. There has been a significant effect for this landlord, in that they have incurred losses and expenses from the abandonment, such as lost rent, and costs of finding new tenants. There is also a public interest in ensuring tenants do not abandon tenancies.
I find that an award of exemplary damages is justified. I am not aware that these tenants have previously abandoned a tenancy. Therefore, I award damages at the lower end of the scale. I fix the level at $500 which is 33% of the maximum award.
The landlords have substantially succeeded with their claims and are entitled to reimbursement of the filing fee.

Tenancy Tribunal case 4977490 — Rent arrears at Unit/Flat 2, 165 Moxham Avenue, Hataitai, Wellington 6021

Tenancy Tribunal case 4977490 — Rent arrears at Unit/Flat 2, 165 Moxham Avenue, Hataitai, Wellington 6021

Order

Reasons

Who are the tenants?

Is the tenancy a fixed term or periodic tenancy?

Did the tenants abandon the premises?

What is owed for rent arrears and re-letting the property?

Is the landlord entitled to loss of rent?

Should the tenants pay exemplary damages for abandonment?

Property management

Order

Reasons

Who are the tenants?

Is the tenancy a fixed term or periodic tenancy?

Did the tenants abandon the premises?

What is owed for rent arrears and re-letting the property?

Is the landlord entitled to loss of rent?

Should the tenants pay exemplary damages for abandonment?

Property management