What was the outcome of Tenancy Tribunal case 5034868?

The tribunal order states: The tenancy of Mike Moore at Unit/Flat Flat 1, 178 Archers Road, Glenfield,

How much money was awarded in case 5034868?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $3,534.29 awarded to landlord

What type of tenancy dispute was case 5034868?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5034868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11036426-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5034868?

The tribunal order states: The tenancy of Mike Moore at Unit/Flat Flat 1, 178 Archers Road, Glenfield,

How much money was awarded in case 5034868?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $3,534.29 awarded to landlord

What type of tenancy dispute was case 5034868?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5034868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11036426-Tenancy_Tribunal_Order.pdf.

Unit/Flat Flat 1, 178 Archers Road, Glenfield, Auckland Tenancy Tribunal Case 5034868 — Rent arrears

Claims and awards in Tenancy Tribunal application 5034868 — net $1,121.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of 19 November 2024	$3,534.29	Rent arrears as of 19 November 2024
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,121.29
Total payable by Tenant to Landlord	$1,121.29

Order

The tenancy of Mike Moore at Unit/Flat Flat 1, 178 Archers Road, Glenfield, Auckland 0629 is terminated, and possession is granted to NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf, at 11:59pm on 19 November 2024.
The Bond Centre is to pay the bond of $2,440.00 (6426054-010) to NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf immediately.
Mike Moore must pay NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf $1,121.29 no later than by 19 November 2024, calculated as shown in the table below: DescriptionLandlord Rent arrears as of 19 November 2024$3,534.29 Filing fee reimbursement$27.00 Total award$3,561.29 Minus bond- $2,440.00 Total payable by Tenant to Landlord$1,121.29

Reasons

Both parties attended the hearing. Mr Moore was represented by counsel, Mr McLennan, and he also had a support person with him. The landlord was represented by Ms Wu
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The application for termination is made on two grounds, that is rent arrears in excess of 21 days, and also anti-social behaviour. However given the Tribunal’s findings around the termination for the rent arrears application, the Tribunal has not needed to consider the application for termination on the grounds of antisocial behaviour. Rent arrears
Section 55(1)(a) confirms that the Tribunal shall order termination of the tenancy when the rent was at least 21 days in arrears on the date the application for termination is filed with the Tribunal.
In this case, the landlord filed the application with the Tribunal on 18 October 2024. At the time the application was filed, the landlord’s rent record held the arrears to be $2,620.00, which is just over 28 days of arrears. However it is the case that at some stage on 18 October 2024 the landlord received another weekly rent payment, which reduced the arrears to $1,980.00, just over 21 days in arrears.
Because the rent was at least 21 days in arrears on the date the application was filed, the criteria in section 55(1)(a) has been met, so the statutory expectation is that the Tribunal shall order that the tenancy be terminated.
However Mr McLennan correctly submitted that there is an ameliorating provision in section 55(1A), where the Tribunal could make an unless order, otherwise known as a conditional termination order. Mr McLennan submitted that the order could require payment of the arrears within 14 days or the tenancy terminate, or that the bond be released to satisfy the debt.
Section 55(1A) is as follows: (1A) Notwithstanding section 78(3), the Tribunal may, instead of making a final termination order for the non-payment of rent under subsection (1)(a), make a conditional order if, but only if, it is satisfied that— (a) the tenant will pay any rent in arrear within a period specified by the Tribunal and (b) it is unlikely that the tenant will commit any further breach of a kind to which any of paragraphs (a), (b), and (c) of subsection (1) applies.
I note at this juncture that the landlord opposes a conditional termination order. Nevertheless, if I determined that the test in section 55(1A) was met, I could make a conditional termination order, but I find neither limb of the test would be met in order to make that order.
The first limb of the test requires that I be satisfied that “the tenant will pay any rent in arrear within a period specified by the Tribunal”. As of the hearing today, the total amount of rent arrears in this tenancy is $2,254.29, which is some 24 days in arrears. Mr Moore has not provided the Tribunal with any evidence as to how he would clear those arrears other than by releasing the bond to the landlord.
As I noted at the hearing, releasing the bond is not a reasonable approach. The landlord is entitled to have a bond held at the Bond Centre over the duration of the tenancy. Mr Moore considers the bond is his money to use for paying rent arrears should he wish, but that is not entirely correct. Certainly if the tenancy ended the Tribunal could apply the bond to rent, but unless the landlord otherwise consented, Mr Moore is not able to unilaterally decide the bond be paid toward rent arrears. Mr Moore has not explained how he would manage to pay the arrears of $2,254.29 within 14 days, and at the same time make his normal weekly rental payments which would be an additional $1,280.00 over the next 14 days.
Accordingly the first limb of the section 55(1A) test has not been met.
But even if that were not the case, I find Mr Moore has not satisfied me that he would meet the second limb of the test, which would require that I find it “is unlikely that the tenant will commit any further breach”. I consider that Mr Moore has not established this for these reasons: a. Mr Moore explained that the reason he did not pay his rent between 22 September and 18 October (21 days) was because he was not being paid. Mr Moore advised he was not working because he was caring for his unwell partner. But that was not consistent with Mr Moore’s earlier statement that the reason he fell into arrears over those three weeks was because he was not in full-time employment. Rather Mr Moore advised he would not fall into arrears again because he was now in full-time employment. It seems based on Mr Moore’s evidence that he was in full-time employment over those three weeks. b. As I noted at the hearing, the rent record confirms that Mr Moore has only been up to date with his rent for 15 weeks of this year. Mr Moore has been in arrears more weeks than he has been up to date. 1 c. I asked Mr Moore why I would believe that if a conditional termination order was made, that he would not fall into arrears again? Mr Moore states that I 1 Mr Moore’s tenancy agreement requires that he be one week in advance with his rent payments. had his word on this. Unfortunately given the history of arrears over the year, in circumstances where Mr Moore was required by law to pay his rent, I am not able to accept only his word on the matter. d. Finally, as I also noted at the hearing, there is no evidence of Mr Moore acting to get on top of his arrears. Mr McLennan submitted that the situation would have been a shock to Mr Moore, and that would have motivated the tenant to ensure he got his payments up to date and stayed that way. The application with the Tribunal was filed on 18 October, and if the circumstances of facing termination was of moment to Mr Moore, I would have expected to see some effort to chip away at the arrears before now, and to see a lower level of arrears at the hearing date, but that is not the case. Depending on how you approach the dates, the arrears are either just the same as they were on 18 October, or they have worsened. I cannot be satisfied in those circumstances that Mr Moore would either clear the arrears or not find himself in this situation again.
For those reasons, I decline to exercise my discretion to make the termination order conditional.
The landlord has consented however to allowing a possession order in two weeks time. That is ordered. I have calculated the arrears that will arise as of the termination date (19 November 2024), and those arrears are ordered.
The bond is to be released to the landlord in full.
Because the landlord has been wholly successful, the tenant is to pay the filing fee paid to commence this proceeding.

Claims and awards in Tenancy Tribunal application 5034868 — net $1,121.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears as of 19 November 2024	$3,534.29	Rent arrears as of 19 November 2024
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,121.29
Total payable by Tenant to Landlord	$1,121.29

Order

The tenancy of Mike Moore at Unit/Flat Flat 1, 178 Archers Road, Glenfield, Auckland 0629 is terminated, and possession is granted to NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf, at 11:59pm on 19 November 2024.
The Bond Centre is to pay the bond of $2,440.00 (6426054-010) to NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf immediately.
Mike Moore must pay NZpro Property Management Limited T/A: LJ Hooker Mt Albert Ltd as agent for Samira Vikrant Saraf & Vikrant Saraf $1,121.29 no later than by 19 November 2024, calculated as shown in the table below: DescriptionLandlord Rent arrears as of 19 November 2024$3,534.29 Filing fee reimbursement$27.00 Total award$3,561.29 Minus bond- $2,440.00 Total payable by Tenant to Landlord$1,121.29

Reasons

Both parties attended the hearing. Mr Moore was represented by counsel, Mr McLennan, and he also had a support person with him. The landlord was represented by Ms Wu
The landlord has applied for termination of the tenancy, rent arrears and refund of the bond. The application for termination is made on two grounds, that is rent arrears in excess of 21 days, and also anti-social behaviour. However given the Tribunal’s findings around the termination for the rent arrears application, the Tribunal has not needed to consider the application for termination on the grounds of antisocial behaviour. Rent arrears
Section 55(1)(a) confirms that the Tribunal shall order termination of the tenancy when the rent was at least 21 days in arrears on the date the application for termination is filed with the Tribunal.
In this case, the landlord filed the application with the Tribunal on 18 October 2024. At the time the application was filed, the landlord’s rent record held the arrears to be $2,620.00, which is just over 28 days of arrears. However it is the case that at some stage on 18 October 2024 the landlord received another weekly rent payment, which reduced the arrears to $1,980.00, just over 21 days in arrears.
Because the rent was at least 21 days in arrears on the date the application was filed, the criteria in section 55(1)(a) has been met, so the statutory expectation is that the Tribunal shall order that the tenancy be terminated.
However Mr McLennan correctly submitted that there is an ameliorating provision in section 55(1A), where the Tribunal could make an unless order, otherwise known as a conditional termination order. Mr McLennan submitted that the order could require payment of the arrears within 14 days or the tenancy terminate, or that the bond be released to satisfy the debt.
Section 55(1A) is as follows: (1A) Notwithstanding section 78(3), the Tribunal may, instead of making a final termination order for the non-payment of rent under subsection (1)(a), make a conditional order if, but only if, it is satisfied that— (a) the tenant will pay any rent in arrear within a period specified by the Tribunal and (b) it is unlikely that the tenant will commit any further breach of a kind to which any of paragraphs (a), (b), and (c) of subsection (1) applies.
I note at this juncture that the landlord opposes a conditional termination order. Nevertheless, if I determined that the test in section 55(1A) was met, I could make a conditional termination order, but I find neither limb of the test would be met in order to make that order.
The first limb of the test requires that I be satisfied that “the tenant will pay any rent in arrear within a period specified by the Tribunal”. As of the hearing today, the total amount of rent arrears in this tenancy is $2,254.29, which is some 24 days in arrears. Mr Moore has not provided the Tribunal with any evidence as to how he would clear those arrears other than by releasing the bond to the landlord.
As I noted at the hearing, releasing the bond is not a reasonable approach. The landlord is entitled to have a bond held at the Bond Centre over the duration of the tenancy. Mr Moore considers the bond is his money to use for paying rent arrears should he wish, but that is not entirely correct. Certainly if the tenancy ended the Tribunal could apply the bond to rent, but unless the landlord otherwise consented, Mr Moore is not able to unilaterally decide the bond be paid toward rent arrears. Mr Moore has not explained how he would manage to pay the arrears of $2,254.29 within 14 days, and at the same time make his normal weekly rental payments which would be an additional $1,280.00 over the next 14 days.
Accordingly the first limb of the section 55(1A) test has not been met.
But even if that were not the case, I find Mr Moore has not satisfied me that he would meet the second limb of the test, which would require that I find it “is unlikely that the tenant will commit any further breach”. I consider that Mr Moore has not established this for these reasons: a. Mr Moore explained that the reason he did not pay his rent between 22 September and 18 October (21 days) was because he was not being paid. Mr Moore advised he was not working because he was caring for his unwell partner. But that was not consistent with Mr Moore’s earlier statement that the reason he fell into arrears over those three weeks was because he was not in full-time employment. Rather Mr Moore advised he would not fall into arrears again because he was now in full-time employment. It seems based on Mr Moore’s evidence that he was in full-time employment over those three weeks. b. As I noted at the hearing, the rent record confirms that Mr Moore has only been up to date with his rent for 15 weeks of this year. Mr Moore has been in arrears more weeks than he has been up to date. 1 c. I asked Mr Moore why I would believe that if a conditional termination order was made, that he would not fall into arrears again? Mr Moore states that I 1 Mr Moore’s tenancy agreement requires that he be one week in advance with his rent payments. had his word on this. Unfortunately given the history of arrears over the year, in circumstances where Mr Moore was required by law to pay his rent, I am not able to accept only his word on the matter. d. Finally, as I also noted at the hearing, there is no evidence of Mr Moore acting to get on top of his arrears. Mr McLennan submitted that the situation would have been a shock to Mr Moore, and that would have motivated the tenant to ensure he got his payments up to date and stayed that way. The application with the Tribunal was filed on 18 October, and if the circumstances of facing termination was of moment to Mr Moore, I would have expected to see some effort to chip away at the arrears before now, and to see a lower level of arrears at the hearing date, but that is not the case. Depending on how you approach the dates, the arrears are either just the same as they were on 18 October, or they have worsened. I cannot be satisfied in those circumstances that Mr Moore would either clear the arrears or not find himself in this situation again.
For those reasons, I decline to exercise my discretion to make the termination order conditional.
The landlord has consented however to allowing a possession order in two weeks time. That is ordered. I have calculated the arrears that will arise as of the termination date (19 November 2024), and those arrears are ordered.
The bond is to be released to the landlord in full.
Because the landlord has been wholly successful, the tenant is to pay the filing fee paid to commence this proceeding.

Tenancy Tribunal case 5034868 — Rent arrears at Unit/Flat Flat 1, 178 Archers Road, Glenfield, Auckland

At a glance

Tenancy Tribunal case 5034868 — Rent arrears at Unit/Flat Flat 1, 178 Archers Road, Glenfield, Auckland

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions