Published tribunal order
Tenancy Tribunal case 5432888 — Rent arrears at Unit/Flat Flat 3, 8 Margaret Road, Papatoetoe, Auckland
Published 23 April 2026 · Application 5432888
Landlord favoured
- Rent arrears
Order
- The term of the fixed-term tenancy of Anjaleen Deep at Unit/Flat Flat 3, 8 Margaret Road, Papatoetoe, Auckland 2025 is reduced and now ends on 15 February 2026.
- Anjaleen Deep must pay The Rent Shop Limited As Agents For Rupen Chand $874.25 immediately as set out below.
Reasons
- Both parties attended the hearing.
- This is a fixed term tenancy which commenced on 24 November 2025 and expires on 24 May 2026. The tenant seeks to reduce the fixed term tenancy.
- The landlord sought rent arrears against the tenant up to the date that the property is relet on 27 March 2026.
- Shortly after moving into the premises in November 2025, the tenant and her infant son experienced itching from flea bites. The tenant also says that there was significant infestation of cockroaches and lizards.
- The landlord responded by sending pest controllers to the premises.
- Understandably the tenant is concerned for her family’s health and decided that the premises is unsuitable to her needs despite the landlord’s efforts to fumigate the premises.
- The tenant gave 21-day notice on 16 December 2025 to vacate and end the tenancy, advising the landlord to start finding new/replacement tenants.
- For those reasons, I am satisfied that the fixed term tenancy should be reduced. The landlord is generally entitled to rent until new tenants are found, in this case on 27 March 2026, over 3 months later despite efforts by the landlord to find replacement tenants sooner.
- Section 85 Residential Tenancies Act 1986 requires me to consider the substantive merits and justice of the case while applying the relevant law.
- The landlord agrees to waive readvertising and reletting fees but continues to claim rent until new tenants are found.
- Landlords are obliged to mitigate their loss in the circumstances.
- In Lehrer v Protheroe CIV-2009-070-65, DC Tauranga, 19 October 2009, the District Court held that where the parties agree to the fixed term being reduced, or an application is made under section 66, there is a requirement that the landlord take reasonable steps to find a replacement tenant.
- Following the approach by the District Court, the landlord has a duty to take all reasonable steps to limit the loss arising from the tenant’s actual or anticipatory breach of contract. DCJ Rollo reduced the term of the tenancy to 2 months after notice had been given by the tenant, despite new tenants not being found until a few months later. Following Lehrer, I apply a similar two-months’ time period to this tenancy, reducing the term to 15 February 2026 from the tenant’s notice on 16 December 2025.
- In Keenan v Ohlson (District Court Nelson, TT 328/00, 5 February 2001) the Court held that the tenant was not in breach but had asked to be released from the tenancy and had agreed to pay 5 week’s rent – it was said that section 49 would have applied if the landlord had refused to release the tenant and the tenant had unilaterally cancelled the tenancy and vacated. However, it was accepted that, in those circumstances, section 49 would place a duty on the landlord to take steps to find a replacement tenant.
- Other cases have proceeded on the basis that a tenant who vacates before the end of a fixed-term tenancy is in breach, and the landlord has a duty to mitigate their loss by finding a replacement tenant - see BAT Trust v Sareczky (District Court Auckland, CIV-2011-090-001912, 20 February 2012) and McDonald v Inwood (District Court Wellington, CIV-2008-085-1269, 28 February 2008).
- Those cases impose a duty on the landlord to mitigate his or her loss arising from a breach of a tenancy agreement, pursuant to section 49 of the Act. They import an objective test, which means a landlord must take all reasonable steps that an objective person would take to limit the loss, including taking back possession of the premises and finding a suitable replacement tenant.
- Having regard to the above cases, and substantive merits and justice of the case, I consider it fair under the circumstances that the landlord is allowed to charge rent until 15 February 2026.
- The landlord has rent records which prove the amount owing.
- The bond will be refunded to the landlord to offset some of the rent owing.