Published tribunal order
Tenancy Tribunal case 5142029 — Rent arrears at 3 Crammond Avenue, Corstorphine, Dunedin 9012
Decided 6 Mar 2025 · Published 6 Mar 2025 · Application 5142029
Mixed / unclear
- Rent arrears
- 14-day notice
Order
- Donetta Faith Erica Pauline Mcqueen owes Kāinga Ora–Homes And Communities $4,060.37 (“the debt”) being rent arrears to 6 March 2025.
- Donetta Faith Erica Pauline Mcqueen must pay rent and the debt as follows: a. By 40 weekly payments of $280.00, being $180.00 for rent and $100.00 for the debt. b. A final payment of $240.37, being $180.00 for rent and $60.37 for the debt. c. Payments will be every Wednesday, with the first payment on 12/03/2025 and continuing until 17/12/2025.
- Payments will be allocated in the following order: rent, rent arrears.
- If the tenant fails to pay rent and rent arrears within 2 working days of the due dates: a. The balance of the debt will be payable immediately.
Reasons
- Both parties attended the hearing which was held by teleconference.
- The landlord has applied for termination of the tenancy and rent arrears. As is usual current practice for Kāinga Ora–Homes And Communities in cases where there is a large amount of rent arrears, they have softened their approach by stating that they are seeking a conditional termination.
Should a conditional termination order be made?
- Where rent is at least 21 days in arrears on the date the application was filed, the Tribunal must make either a final or a conditional termination order. See section 55(1)(a) and (1A) Residential Tenancies Act, 1986 (the “RTA).
- In order to grant a conditional order for termination, I must be satisfied the tenant will pay the debt within the period specified in the order, and I must be satisfied she is unlikely to commit any further relevant breach. See RTA section 55(1A)(a) and (b).
- I have considered whether or not a conditional termination order is appropriate in this case and the following facts are relevant: a. The tenancy began on 22 March 2016, which means the tenant has lived there for almost 9 years. b. The tenant has three children aged 8 years or younger. c. The tenant fell into rent arrears almost immediately but then cleared the arrears and from time to time has been in rent credit. d. Since April 2020 the tenant has always had in excess of $1,000.00 rent arrears. This is a period of almost five years. (I note that this coincides with the first COVID-19 lockdown.) e. From April 2020 until early 2024 rent arrears accumulated at a steady rate, until it exceeded $5,000.00. Rent arrears has been fairly consistently in excess of $5,000.00 since then. f. The tenant is currently making a concerted effort to address the arrears and has lowered arrears by $775.20 in the last 6 weeks. The tenant currently has an automatic payment for rent plus $100.00 ($280.00) being paid to Kāinga Ora–Homes And Communities on a weekly basis. g. The landlord provided rent records which prove the amount owing as of today’s date is $4,060.37. h. Kāinga Ora–Homes And Communities has applied for mediation to address the arrears on one occasion in January 2019. i. The tenant states that she wants to end the tenancy and get a private tenancy with her partner (who lives at a different address). However, because of her current arrears she cannot get the reference which most prospective landlords require. Because of that, she does not want her current tenancy terminated.
- When I consider the above information, I am far from satisfied that the tenant will be able to pay off the arrears within a set (reasonable) period that I specify, without committing any further breach of the same kind. Obviously a shorter period will be easier to comply with, but this would mean higher repayments. Similarly, lower repayments will be easier to comply with, but this would mean a longer period to comply with repayments without committing any further rent breach.
- For these reasons I decline to order a conditional termination.
- Having indicated this to the Kāinga Ora–Homes And Communities representative today, the Kāinga Ora–Homes And Communities representative advised that she would be seeking a final termination of the tenancy.
Should the tenancy be terminated?
- I consider that in effect, by not seeking to enforce the tenant’s obligation to repay arrears when they were still at a manageable level, Kāinga Ora–Homes And Communities denied the tenant the opportunity to have the arrears dealt with by way of a conditional termination order.
- The wording of section 55(1)(a) of the RTA is that the Tribunal “shall” terminate a tenancy where the qualifying sections apply.
- However a waiver by the landlord of any breach by the tenant, or a failure by the landlord to enforce an obligation of the tenant, may be taken into consideration by the Tribunal, if the landlord subsequently applies to the Tribunal for an order terminating the tenancy. See RTA section 134.
- That is the situation here: For years Kainga Ora–Homes And Communities has failed to act on the tenant’s breach. Whereas Kainga Ora–Homes And Communities are not now precluded from enforcing the tenant’s obligation to pay rent and rent arrears, I may take their previous inaction into account in deciding whether or not to terminate the tenancy today.
- When I consider all the circumstances of this case as presented today, I arrive at the conclusion that the substantial merits and justice of this case (see RTA section 85) are such that it would not be appropriate for me to terminate the tenancy today.
- If the tenant breaches the order, the circumstances will naturally be different, and a different outcome to a similar application from the landlord will be possible.
- Kainga Ora–Homes And Communities provided rent records that prove that as of today’s date $4,060.37 rent arrears is owing.