Published tribunal order
Tenancy Tribunal case 5046848 — Rent arrears at 52 Ata-Mahina Way, Ruakaka 0116
Decided 18 Nov 2024 · Published 18 Nov 2024 · Application 5046848
Landlord favoured
- Rent arrears
- Property damage
Order
- The tenancy of Hailee Heta at 52 Ata-Mahina Way, Ruakaka 0116 is terminated, and possession is granted to Lynda Swanson immediately.
- Ms Heta is to pay Ms Swanson $1,100.00 from the bond calculated per the table below.
- The Bond Centre is to pay the bond of $2,800.00 (6396607-004) immediately apportioned as follows: Lynda Swanson: $1,100.00 Hailee Heta: $1,700.00
Reasons
Background
- Ms Heta entered into a one-year fixed term tenancy commencing on 1 January 2024.
- The tenancy agreement provided that the maximum number of occupants was 5.
- Two weeks into the tenancy, Ms Heta spoke to Ms Swanson about the possibility of her son joining them at the premises. Ms Swanson agreed to increase the maximum number of occupants to 6. One of the terms of Ms Swanson’s consent was that she would carry out monthly inspections. Ms Swanson says that the other term of her consent was that Ms Heta would minimise the number of visitors to the property. Ms Heta says that this was not discussed or agreed at that time.
- On 17 October 2024 Ms Heta sent Ms Swanson an email stating that she was “making preparations to vacate the property and terminate the tenancy by 3 November 2024” due to “these conditions, multiple breaches, and fear of your retaliation when I tried to invoke my rights”, specifically that: a. Ms Swanson did not allow her to have visitors; and b. Ms Swanson consistently demanded rent even though she had paid rent in advance.
- Ms Heta’s application seeks an order terminating the tenancy and refund of the bond.
- Ms Swanson’s application seeks rent arrears, Trade Me advertising costs, water rates, compensation for damage (hob top, deck, bedroom carpet) and lost wages (attending the hearing).
- The hearing took place in Whangarei on 13 November 2024. Both parties participated in the hearing. Termination and rent arrears
- A fixed term tenancy cannot be ended by notice. Ms Heta’s email on 17 October did not have the effect of terminating the tenancy on 3 November.
- A fixed term tenancy can be terminated by: a. Agreement between the landlord or tenant; or b. The Tenancy Tribunal making an order for termination if there is a legal basis for doing so.
- There was no agreement in this instance. Ms Swanson said that she was willing discuss ending the tenancy, but on the understanding / assumption that it would not end until she had a tenant to replace Ms Heta and Ms Heta had found another property to move into.
- Therefore, the question is whether there are grounds for the Tribunal to make an order for termination of the tenancy.
- The Tribunal may make an order terminating a tenancy if: 1 a. The landlord (or tenant) breaches a term of the tenancy agreement or of the Residential Tenancies Act 1986 (“RTA”); and b. The nature and extent of the breach is such that “it would be inequitable to refuse the request for termination”.
- Ms Heta raised two grounds for termination: a. Ms Swanson limiting / forbidding visitors. b. Ms Swanson requesting rent before it is due. Visitors
- Tenants have a right to quiet enjoyment of the premises. 2
- Landlords may limit the number of occupants / residents during the tenancy 3 , but cannot limit or control the number of visitors. 4
- Ms Swanson said that: a. She discussed the issue with Ms Heta when Ms Heta asked if her son could move into the house, increasing the number of occupants to 6. b. She wanted to help Ms Heta, but she was concerned about wear on the house. c. Ms Heta understood and accepted her concerns at that time.
- Ms Heta said that: a. She did not agree to any limitations on visitors. b. She did not have large numbers of visitors. She asked for family members visiting from Australia to stay for one night in early February. She was hoping to have some visitors over the upcoming summer. c. Ms Swanson’s ‘rule’ about visitors caused her significant inconvenience and stress.
- My findings are: 1 Section 56, Residential Tenancies Act 1986 (“RTA”) 2 Section 38(1) & (2) RTA 3 Section 40(3) RTA 4 Subramaniam v Simbolon [2024] NZTT 4871983, 4826197 a. It is not proven that Ms Heta genuinely agreed to the ‘no visitors’ rule. b. Even if there was such an agreement, a landlord cannot by agreement impose a higher duty / obligation on a tenant than the RTA provides for. 5 c. The no visitors rule was an unreasonable interference with Ms Heta’s right to quiet enjoyment of the premises. d. Ms Heta sent Ms Swanson a detailed message in early February, setting out her concerns about the no visitors rule and asking whether her sister- in-law and family could visit over the long weekend as a “compromise and trial”. Ms Swanson requested a face-to-face meeting, and Ms Heta said that Ms Swanson was very upset at that meeting and said that if she was not willing to accept the no visitor rule then she should look for another place to live. Ms Swanson has a somewhat different recollection of this meeting, but she agrees that the option of “moving on” was discussed. These communications amounted to notice to Ms Swanson that her no visitor rule was an unreasonable and unlawful interference with Ms Heta’s right to quiet enjoyment. There are no particular formal requirements for a notice of breach, provided that the person giving the notice identifies the breach and gives the other period a reasonable period of time to remedy it. In this instance, Ms Heta made Ms Swanson aware of the problem, and Ms Swanson had more than adequate time to remedy it by withdrawing her no visitors rule. Requiring rent to be paid before it is due
- The tenancy began on 1 January 2024, a Monday.
- Ms Heta paid a bond and a week’s rent in advance around the time that the agreement was signed.
- Ms Swanson required Ms Heta to pay another week of rent in advance when she moved in.
- Ms Swanson then expected Ms Heta to pay each week after that.
- This was based on a misunderstanding that the landlord ‘holds’ first week in advance, and it is then used at the very end of the tenancy, so the tenant does not pay the last week of rent.
- This is incorrect. A landlord cannot require the payment of rent before the expiry of the period for which rent has already been paid. 6 5 Section 11 RTA 6 Section 23(1)(b) RTA
- Ms Heta effectively paid two weeks rent in advance. Therefore, she should not have been required to pay rent until 15 January 2024. Ms Swanson required Ms Heta to remain two weeks in advance. This is legally permitted 7 , but was not provided for in the tenancy agreement in this instance.
- Therefore, on multiple occasions, Ms Swanson required Ms Heta to pay rent before it legally fell due. This is a breach of a legal duty under the RTA.
- Again, Ms Heta expressed her concerns about this multiple times, but Ms Swanson did not change her practice.
Do the breaches justify termination of the tenancy?
- I am satisfied that Ms Swanson breached two legal duties that landlords owe under the RTA: a. She unreasonably interfered with Ms Heta’s right to quiet use and enjoyment of the premises by imposing a no visitors rule. b. She required payment of rent before it legally fell due for payment.
- The breach of requiring payment of rent before it fell due is not a type of breach that is capable of being remedied. Once rent has been unlawfully demanded it cannot be “undemanded”.
- It is arguable whether the breach of interference with quiet use and enjoyment is a type of breach that is capable of being remedied. Even if Ms Swanson had changed her mind and withdrawn the ‘no visitors’ rule there would still be a period of time when it interfered with Ms Heta’s quiet use and enjoyment of the premises. However, even if it could be argued that this is a breach that is capable of being remedied, for the reasons given above I am satisfied that Ms Heta did give notice to Ms Swanson, and Ms Swanson failed to remedy the breach withing a reasonable period of time.
- Therefore, applying the legal criteria for termination set out at paragraph 12 above, Ms Heta is entitled to an order for termination of the tenancy if the “breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy”.
- It is important to acknowledge that Ms Swanson’s breaches were not intentional. They were due to misunderstandings of her legal rights and obligations as a landlord. Ms Swanson genuinely understood that the visitor restriction was a fair and reasonable compromise for allowing an extra occupant, and I understand why she took that view. Similarly, the problem with unlawfully requiring rent was due to an innocent error about how rent in 7 Section 23(1)(a) RTA advance is handled. However, being a landlord is running a business. Law applies to that business operation, and ignorance of the law is no excuse.
- I am satisfied that it would be inequitable to refuse the request for termination. The no visitors rule was a significant impact on Ms Heta’s quiet use and enjoyment of the premises. Ms Heta explained that Ms Swanson’s reaction at their February meeting caused her to “live in fear” that Ms Swanson would pressure her out of the property if she objected to (or broke) the no visitors rule. If Ms Heta had known at the beginning of the tenancy that she would not be allowed to have visitors, she would not have taken on the tenancy.
- Therefore, the tenancy is terminated with immediate effect. Rent arrears
- I have made a finding that the tenancy is terminated with immediate effect.
- The landlord seeks rent arrears of $2,100, but did not provide a rent record. I understand that rent is paid to 4 November 2024, the date that Ms Heta left the property.
- The Tenancy Tribunal is required to determine disputes in accordance with the substantial merits and justice of the case. 8
- Ms Heta had grounds for termination of the tenancy, but she made the decision to leave the property before obtaining an order for termination from the Tenancy Tribunal.
- In a periodic tenancy, a landlord is entitled to 28-days’ notice of termination.
- Having regard to the substantial merits and justice of the case, my finding is that Ms Heta is liable for rent to the date that is 28-days from her 17 October email, which is 14 November 2024.
- Ms Heta is therefore liable for ten days of rent arrears, which is $1,000.00. Water rates
- Ms Swanson seeks water rates to the date that Ms Heta left the property.
- Ms Heta does not dispute that she is liable to pay for water that she used.
- Ms Swanson has not calculated Ms Heta’s water use. I cannot make an order for an unknown amount.
- Once Ms Swanson has calculated Ms Heta’s water use she can provide this information to Ms Heta and Ms Heta can pay her directly. 8 Section 85(2) RTA Trade Me ad
- This cost is linked to Ms Swanson’s argument that Ms Heta abandoned the fixed term tenancy.
- My finding above is that the fixed term tenancy is terminated for breach. The tenancy is lawfully ended. Ms Heta is not liable for the cost of the landlord finding a new tenant. Lost wages – attending hearing
- The Tenancy Tribunal has no power to award costs to any party, except in certain limited circumstances which do not apply in this instance. 9 Damage
- The landlord seeks compensation for: a. Damage to kitchen hob. b. Damage to deck. c. Stain on bedroom carpet.
- Tenants are liable for damage beyond fair wear and tear that occurs during the period of the tenancy. 10
- Tenants are liable for damage that is caused by themselves or by anyone who is at the premises with the tenant’s consent.
- A tenant’s liability for each incidence of careless damage is limited to the amount of the landlord’s insurance excess (if applicable), or the equivalent of four-weeks’ rent. Damage to kitchen hob
- Ms Swanson provided a photograph showing a crack and small chip on the edge of the hobtop.
- Ms Heta said that she did not notice this damage during her tenancy.
- The damage is obvious enough that it would have been noted if it was present at the beginning of the tenancy. 9 Section 102 RTA 10 Section 49B RTA
- Therefore I am satisfied that it is more likely than not that the damage occurred during Ms Heta’s tenancy.
- The damage is beyond fair wear and tear.
- Ms Swanson provided a price for a replacement hob ($428.00), but sensibly acknowledged that the relatively minor damage does not justify replacement of the hob.
- The damage is an aesthetic detriment – it does not look as good as it did before the damage – and it will arguably bring forward the date that the landlord thinks about replacing the hobtop. It is appropriate to make an award of compensation to reflect this detriment.
- I will award $100.00. Deck
- Ms Swanson that there was damage to deck (scratches, marks) due to Ms Heta’s children riding scooters on the deck.
- Ms Swanson could only provide two relatively low quality, poor resolution, very close-up photographs in support of this part of this claim.
- Although Ms Swanson’s compensation claim is very reasonable (she is only seeking the cost of a 4-litre pail of decking oil, $148), this level of evidence simply doesn’t establish damage beyond fair wear and tear.
- Therefore, this part of the claim must be dismissed. Carpet stain
- Ms Swanson provided a photograph showing a large red stain on the carpet in a bedroom.
- Ms Heta was puzzled by this, and said that she did not notice this stain when she left the property. Ms Heta said that she was willing to return to the property and attempt to remove the stain.
- Ms Swanson has not quantified her claim. She has not arranged for professional cleaning of the stain.
- Ms Swanson said that she had no objection to allowing Ms Heta to return and attempt to remove the stain.
- If Ms Heta fails to, or if she returns to the property but is unable to remove the stain, then: a. I am satisfied that the stain occurred during the period of Ms Heta’s tenancy. b. Ms Heta will liable for the reasonable cost of professional stain treatment and cleaning in this room. Filing fee, bond
- Both parties have been partially successful in their applications, and I will award the filing fee to both. 11
- Ms Swanson will receive $1,100.00 from the bond. Ms Heta will receive $1,700.00.