What was the outcome of Tenancy Tribunal case 5065735?

The tribunal order states: Dominic Leo Dsouza must pay Barfoot & Thompson Limited As Agent For

How much money was awarded in case 5065735?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,574.28 awarded to landlord

What type of tenancy dispute was case 5065735?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5065735?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11121294-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5065735?

The tribunal order states: Dominic Leo Dsouza must pay Barfoot & Thompson Limited As Agent For

How much money was awarded in case 5065735?

Filing Fee: $27.00 awarded to landlord; Rent Arrears: $2,574.28 awarded to landlord

What type of tenancy dispute was case 5065735?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5065735?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11121294-Tenancy_Tribunal_Order.pdf.

Unit/Flat Unit 18, 130 Great South Road, Epsom, Auckland Tenancy Tribunal Case 5065735 — Rent arrears

Claims and awards in Tenancy Tribunal application 5065735 — net $2,601.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,574.28	Rent arrears
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,601.28
Total payable by Tenant to Landlord	$2,601.28

Order

Dominic Leo Dsouza must pay Barfoot & Thompson Limited As Agent For Taylor, Berwick $2,601.28 immediately, being rent arrears to 25 November 2024 and reimbursement of the filing fee.
The tenant’s application is dismissed. DescriptionLandlord Rent arrears$2,574.28 Filing fee reimbursement$27.00 Total award$2,601.28 Total payable by Tenant to Landlord$2,601.28

Reasons

Both parties attended the hearing by telephone.
The tenant has applied for a reduction of the term of the fixed term tenancy under section 66 Residential Tenancies Act 1986 (“RTA”).
The landlord has applied for rent arrears. Standard of proof and evidence
The parties have the burden of proving their claims on the balance of probabilities; that is, that their claim is more likely than not.
While I have not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence. Background facts
The parties’ evidence confirms: a. The landlord notified the tenant by email on 6 June 2024 that the current fixed term tenancy would end on 20 September 2024. In that email the landlord offered the tenant the option of a further fixed term tenancy or a periodic tenancy. b. On 10 June 2024 the tenant indicated to the landlord that he would be interested in a fixed term tenancy of one year. On 12 June 2024 the landlord confirmed that a fixed term of one year was acceptable. c. On 17 June 2024 the tenant made enquiries of the landlord about breaking a fixed term tenancy. The landlord gave a detailed response to the tenant by email setting out its requirements and consequences. The email made clear that the landlord would need to consent to the request to break the fixed term tenancy, the tenant would be liable for rent until a new tenancy started or the fixed term ended and that the tenant would be liable to pay the landlord’s expenses in agreeing to break the fixed term tenancy. d. On 3 July 2024 the parties signed a fixed term tenancy agreement from 20 September 2024 to 19 September 2025. e. On 20 October 2024 the tenant gave the landlord 28 days’ notice of his intention to vacate the property and end the tenancy. f. On 21 October 2024 the landlord sent the tenant the same detailed advice regarding release from a fixed term tenancy. g. The tenant filed his application under section 60 RTA on 10 November 2024.
The tenant provided evidence that: a. He unexpectedly received his residence visa on 11 September 2024. b. He entered into a contract to buy a house on 4 October 2024 and settlement took place on 15 November 2024. c. He continues to live in the premises. d. He did not understand the consequences of entering into a fixed term tenancy and believed that he would be able to give 28 days’ notice to end the tenancy because this was a provision of the tenancy agreement. e. Paying both rent and a mortgage will cause him severe hardship. f. He believes the landlord is taking too long to find a new tenant. Consideration and decision
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in section 66 RTA, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. The Tribunal will not lightly set aside a fixed term tenancy entered into by mutual agreement between the parties. The burden of proof is on the applicant to establish that the fixed term should be reduced by the Tribunal.
The applicant will need to establish that: a. There has been a change in their circumstances. b. The change was unforeseen. c. The unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced. d. The severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
To be successful the applicant must first establish that their circumstances have changed during the tenancy.
The tenant has voluntarily changed his circumstances by buying a house. He has put himself in the position where he is liable for both mortgage payments and rent.
The tenant may not have expected to be in a position to buy a property so soon, but this is not an unexpected change of circumstances as contemplated by section 66 RTA. Section 66 RTA contemplates situations outside the tenant’s control such as redundancy, job relocation or ill health.
The tenant claimed that he decided to buy a property because he believed that he could end the fixed term tenancy on 28 days’ notice as provided in the tenancy agreement. The Tribunal has previously determined that where the tenancy agreement is for a fixed term but includes the standard provision in the tenancy agreement providing for termination on 28 days’ notice, the tenancy is nonetheless a one-year fixed-term tenancy and is not terminable by notice. Section 66 RTA does not apply where the tenant entered into the tenancy in the mistaken belief that it could be terminated as if it were a periodic tenancy.
In this case, the landlord has provided evidence that, prior to entering into the fixed term agreement, the tenant was given clear information detailing what would be required for him to be released from the fixed term. It is difficult to accept that the tenant acted under a misunderstanding of the law having received that advice. At the very least it should have put him on notice to undertake further enquiries before committing himself to a fixed term tenancy as well as a house purchase.
It is not necessary to consider the relative hardships of the tenant and the landlord as the tenant has failed to establish the first essential requirement of section 66 RTA that there has been an unforeseen change in the tenant’s circumstances. On the contrary, the tenant brought about that change of circumstances.
The tenant’s application is dismissed. Landlord’s claim for rent arrears
The landlord has applied for rent arrears and has provided rent records which prove the amount owing. The landlord’s claim is proven.
As the landlord’s claim has been successful, the Tribunal must order reimbursement of the filing fee.

Claims and awards in Tenancy Tribunal application 5065735 — net $2,601.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$2,574.28	Rent arrears
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,601.28
Total payable by Tenant to Landlord	$2,601.28

Order

Dominic Leo Dsouza must pay Barfoot & Thompson Limited As Agent For Taylor, Berwick $2,601.28 immediately, being rent arrears to 25 November 2024 and reimbursement of the filing fee.
The tenant’s application is dismissed. DescriptionLandlord Rent arrears$2,574.28 Filing fee reimbursement$27.00 Total award$2,601.28 Total payable by Tenant to Landlord$2,601.28

Reasons

Both parties attended the hearing by telephone.
The tenant has applied for a reduction of the term of the fixed term tenancy under section 66 Residential Tenancies Act 1986 (“RTA”).
The landlord has applied for rent arrears. Standard of proof and evidence
The parties have the burden of proving their claims on the balance of probabilities; that is, that their claim is more likely than not.
While I have not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, I have referred in this Order only to the most relevant or important evidence. Background facts
The parties’ evidence confirms: a. The landlord notified the tenant by email on 6 June 2024 that the current fixed term tenancy would end on 20 September 2024. In that email the landlord offered the tenant the option of a further fixed term tenancy or a periodic tenancy. b. On 10 June 2024 the tenant indicated to the landlord that he would be interested in a fixed term tenancy of one year. On 12 June 2024 the landlord confirmed that a fixed term of one year was acceptable. c. On 17 June 2024 the tenant made enquiries of the landlord about breaking a fixed term tenancy. The landlord gave a detailed response to the tenant by email setting out its requirements and consequences. The email made clear that the landlord would need to consent to the request to break the fixed term tenancy, the tenant would be liable for rent until a new tenancy started or the fixed term ended and that the tenant would be liable to pay the landlord’s expenses in agreeing to break the fixed term tenancy. d. On 3 July 2024 the parties signed a fixed term tenancy agreement from 20 September 2024 to 19 September 2025. e. On 20 October 2024 the tenant gave the landlord 28 days’ notice of his intention to vacate the property and end the tenancy. f. On 21 October 2024 the landlord sent the tenant the same detailed advice regarding release from a fixed term tenancy. g. The tenant filed his application under section 60 RTA on 10 November 2024.
The tenant provided evidence that: a. He unexpectedly received his residence visa on 11 September 2024. b. He entered into a contract to buy a house on 4 October 2024 and settlement took place on 15 November 2024. c. He continues to live in the premises. d. He did not understand the consequences of entering into a fixed term tenancy and believed that he would be able to give 28 days’ notice to end the tenancy because this was a provision of the tenancy agreement. e. Paying both rent and a mortgage will cause him severe hardship. f. He believes the landlord is taking too long to find a new tenant. Consideration and decision
The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in section 66 RTA, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. The Tribunal will not lightly set aside a fixed term tenancy entered into by mutual agreement between the parties. The burden of proof is on the applicant to establish that the fixed term should be reduced by the Tribunal.
The applicant will need to establish that: a. There has been a change in their circumstances. b. The change was unforeseen. c. The unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced. d. The severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
Section 66(2) provides that, if the Tribunal reduces the term of the tenancy, it may order the applicant to pay reasonable compensation to the other party for any loss or damage which results from the reduction of the term.
To be successful the applicant must first establish that their circumstances have changed during the tenancy.
The tenant has voluntarily changed his circumstances by buying a house. He has put himself in the position where he is liable for both mortgage payments and rent.
The tenant may not have expected to be in a position to buy a property so soon, but this is not an unexpected change of circumstances as contemplated by section 66 RTA. Section 66 RTA contemplates situations outside the tenant’s control such as redundancy, job relocation or ill health.
The tenant claimed that he decided to buy a property because he believed that he could end the fixed term tenancy on 28 days’ notice as provided in the tenancy agreement. The Tribunal has previously determined that where the tenancy agreement is for a fixed term but includes the standard provision in the tenancy agreement providing for termination on 28 days’ notice, the tenancy is nonetheless a one-year fixed-term tenancy and is not terminable by notice. Section 66 RTA does not apply where the tenant entered into the tenancy in the mistaken belief that it could be terminated as if it were a periodic tenancy.
In this case, the landlord has provided evidence that, prior to entering into the fixed term agreement, the tenant was given clear information detailing what would be required for him to be released from the fixed term. It is difficult to accept that the tenant acted under a misunderstanding of the law having received that advice. At the very least it should have put him on notice to undertake further enquiries before committing himself to a fixed term tenancy as well as a house purchase.
It is not necessary to consider the relative hardships of the tenant and the landlord as the tenant has failed to establish the first essential requirement of section 66 RTA that there has been an unforeseen change in the tenant’s circumstances. On the contrary, the tenant brought about that change of circumstances.
The tenant’s application is dismissed. Landlord’s claim for rent arrears
The landlord has applied for rent arrears and has provided rent records which prove the amount owing. The landlord’s claim is proven.
As the landlord’s claim has been successful, the Tribunal must order reimbursement of the filing fee.

Tenancy Tribunal case 5065735 — Rent arrears at Unit/Flat Unit 18, 130 Great South Road, Epsom, Auckland

At a glance

Tenancy Tribunal case 5065735 — Rent arrears at Unit/Flat Unit 18, 130 Great South Road, Epsom, 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