What was the outcome of Tenancy Tribunal case 5269120?

The tribunal order states: No restrictions apply to the publication of this decision.

How much money was awarded in case 5269120?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5269120?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5269120?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12008998-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5269120?

The tribunal order states: No restrictions apply to the publication of this decision.

How much money was awarded in case 5269120?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5269120?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 5269120?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12008998-Tenancy_Tribunal_Order.pdf.

18 Elderberry Road, Burswood, Auckland 2013 Tenancy Tribunal Case 5269120 — Cleanliness

Order

No restrictions apply to the publication of this decision.
The tenants’ application is dismissed.

Reasons

Both tenants and a property manager from New Age Rentals attended the hearing which took place by telephone.
The Tribunal must consider whether to reduce the tenants’ fixed term tenancy, to give compensation for work they did in the bathroom to the vanity and the return of the bond. Civil burden of proof
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenants) to establish their claims “on the balance of probabilities.”
That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: Like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. The facts
The tenancy began on 5 August 2024 and is fixed to end on 4 August 2025. The tenants say they have now moved out but continue to pay rent of $770 per week for the property.
The tenants have attempted to give 21 days’ notice to end their tenancy but the landlord told them that it was not possible to end a fixed term tenancy on this basis. The landlord said it is willing to release the tenants if and when a new tenant is found but the tenant wants to be released now.
The tenants rely on a number of events that they say support their position that their fixed term tenancy should be ended early.
First, they say that the property has a kitchen benchtop that is rotten because water from the sink goes behind the bench in a gap and into the cupboard under the sink. They are concerned because there are power points in that cupboard. This issue was pointed out to the landlord at the start of the tenancy and documents filed confirm this. The tenants say they did not know about this maintenance issue when they agreed to the tenancy because a blind covered the area and also, they would not have opened cupboards to check in them while people were still living there. Photographs of the bench and under the sink cupboard were provided. They support the tenant’s position that water is likely escaping between the tiled wall and the bench so that water can enter the under the sink cupboard because there is a gap between the bench and the wall.
The landlord takes the view that, at present, the bench does not presently need to be replaced although acknowledges that it is getting rotted - the landlord is not willing to do remedial work required by the tenants which is to replace the bench at this stage.
Second, the tenants say that the living room carpet is patched in places and stained in places. They say they did not know about this when they viewed the property as a rug covered it. That rug was still there when they started the tenancy. They say they also could not see the property because it was viewed in winter and the lights were low. Photographs were provided showing some limited patching and marks on the carpet. The landlord says that the carpet is in a reasonable condition and does not need replacing. The landlord is not in a position to replace it presently.
Third, the tenants say that upon moving in, the bathroom vanity was in poor condition. They spoke to the landlord about this, and the landlord said it would not be replaced. The tenant therefore got permission to be able to replace it themselves. The tenant did not ask for payment for this at this point but now seeks $250 for the work.
Fourth, the tenant says that there was a period of either 1 or 2 weeks when the bath tap would not work properly. The bath could not be filled and the shower had to be used – although their children are scared of the shower. This was fixed within 1-2 weeks of reporting it to the landlord.
Fifth, the tenant says they had to do some cleaning and painted a wall because the property was dirty when they moved in.
They are frustrated that their property manager has changed multiple times.
The tenant’s say that they now face hardship because they are paying two rents.
I heard how the landlord also says he too now faces hardship. I heard how he has another rental property which needs extensive work following the property being abandoned. I heard how due to his financial hardship the landlord has needed to move to Australia. The law
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.
The Tribunal may end a fixed term tenancy pursuant to s 66 Residential Tenancies Act 1986 (RTA) which says: (1) On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced. [Tribunal’s emphasis]
Parties enter into a fixed term tenancy for security. For tenants this is security of tenure –so they can be sure they have a home for at least the agreed term. For landlords it is security of income - they can rely on a set amount of income from their investment for the period.
The jurisdiction in s 66 RTA is an extension to the doctrine of frustration found in the general law of contract. In most cases, s 66 seeks to balance the competing interests of the tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain. Given the sanctity of contract, the threshold is high.
In particular, to succeed, 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. Analysis – Can the fixed term end early?
The first issue to consider is whether there has been an unforeseen change in the tenants’ circumstances.
The term “unforeseen” is a legal term defined by reference to the reverse (foreseeability). In cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage) there is a body of case law which has established that: a. foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; b. an outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; c. the term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”. (see Bond v Tang Invercargill TT 09/583/IN, 25 August 2009)
An unforeseen change in circumstances might include an unexpected transfer of the tenant’s employment to another city just before the tenancy commenced (Hippolite v JP Morgan Real Estate TT Palmerston North TT431/96, 9 May 1996 at [1]), one of four tenants developing a sudden and serious illness and leaving the property (Bickerton v Lott DC Wellington TT 550/00, 21 December 2000 at [4]), suicide of a co-tenant (Maguire v Ross TT Dunedin TT 550/03, 30 October 2003 at [2]), a former partner moving nearby in breach of a protection order (Buy West Realty Ltd v Parker Waitakere 09/02094/HE, 8 December 2009 at [4]), or relocation to another city for cancer treatment (Mann v Labes [2015] NZTT Invercargill 229 at [8]).
Changes in the condition of the property are not an unforeseen change in a tenant’s circumstances nor is the need for ordinary repairs and maintenance or minor repairs.
I have considered the evidence in full I do not find it established that the tenants’ circumstances changed unforeseeably. Rather the issues that they rely on are not to do with their circumstances but are connected to the property itself.
In any event, the issues they say were at the property when they viewed it, but the circumstances including the fact that the property was still being lived in meant that they did not see the issues they were later unhappy with. I find it is foreseeable that that if a property is viewed when it is occupied a potential tenant may not appreciate certain aspects of the property. Similarly, the fact that the tenants had to engage with property managers over maintenance issues I consider to be foreseeable. It is also foreseeable that partes may not agree on maintenance issues. It is foreseeable that there may be teething issues at the start of a tenancy to be resolved. It is foreseeable that property managers may leave their employment or change. I also do not consider that the circumstances are to such an extent that would justify ending the tenancy early.
I recognise that the tenants are frustrated but essentially, they have moved out because the landlord was not taking their maintenance concerns seriously and not specifically because their circumstances had changed.
Further, the tenants did not meet their mitigation responsibilities pursuant to section 49 of the RTA. There were options open to them to address the situation to which they did not avail. They did raise their maintenance concerns with the property manager(s) but when they were not addressed, to mitigate their loss the procedure set out in the RTA sets out a specific route to follow. The tenants could have issued a 14-day notice to remedy to provide the landlord with a specific time frame to address the concerns. This would have alerted the landlord to the tenants’ serious concern about the issues. They could have applied to the Tribunal for relief.
Even if I am wrong in that, the tenants did not sufficiently prove that they would suffer severe hardship if the tenancy is not reduced or that it was greater than the hardship the landlord would suffer.
I do not find the requirements of s 66 RTA are met and as such must decline the application to reduce the fixed term tenancy.
For the sake of completeness, I note that the tenants were unhappy about the action the landlord took when they said they wanted to leave the premises. However, as explained at the hearing, there is no obligation on landlord to respond to a tenant’s request to terminate a fixed term tenancy within particular period and no obligation on landlord to agree to end tenancy early (Dmitrovic and Miles v FH 2018 Limited [2021] NZTT 4288277).
The tenant alleged in passing, during their submissions that they were misled. I have therefore also addressed this. This is the law of misrepresentation.
Other than the general facts set out above, the tenants did not set out specifically what the representations relied upon are or provide other submissions or evidence to sufficiently prove an actionable misrepresentation.
Even if the facts set out above give rise to an actionable misrepresentation, here there has been a significant lapse of time between the tenant discovering the issues set out above in August 2024 and the tenant now seeking to set aside the contract.
Even if there was a proven misrepresentation, through their actions of living in the property, paying rent and engaging with the landlord in relation to repairs, I find that the tenants affirmed the contract and have therefore lost their right to cancel on the basis of actionable misrepresentations that might arise from the above facts (see s 38, Contract and Commercial Law Act 2017).
This part of the claim is therefore dismissed. Rent refund for the period after attempting to give 21 days’ notice
The tenants seek a refund of the rent they have paid after they gave their 21 days’ notice.
Such notice to terminate is not valid – a fixed term tenancy cannot be ended on notice such as this. The tenancy remains in effect. This means the tenants remain liable for the rent.
In any event, even if I had reduced the fixed term, I would have only done so from the date of the hearing so no rent refund would have been awarded on this basis.
This part of the application is dismissed. Bond
The tenants wanted the Tribunal to know that the landlord delayed lodging their bond with the Bond Centre. It is now lodged. They did not seek a remedy other than the return of their bond.
The tenancy presently continues and therefore there is no basis upon which to make this order for the return of the bond. The claim for the refund of the bond is dismissed.
The return of the bond will need to be handled in the usual way (e.g. by agreement between the parties or in an application to the Tribunal if no agreement can be reached) once the tenancy has ended. Refund for work to bathroom
The tenants seek $250 for replacing the bathroom vanity themselves.
They say they raised the fact that they were not happy with the bathroom vanity with the property manager when they moved in but the landlord would not agree to its replacement. The tenants say that they then offered to replace it and the property manager told them they could do this.
The tenants say there was no discussion with the property manager about the tenants being compensated for the work.
In considering the evidence, the tenants did not provide any evidence that the landlord agreed to reimburse them for their work so the landlord is not liable to pay.
The claim is dismissed. Suppression
The tenants seek name suppression in their application.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (s95A, RTA).
The tenants have not been successful and I see no other reason to award suppression. I therefore decline to award suppression.

Tenancy Tribunal case 5269120 — Cleanliness at 18 Elderberry Road, Burswood, Auckland 2013

At a glance

Tenancy Tribunal case 5269120 — Cleanliness at 18 Elderberry Road, Burswood, Auckland 2013

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions