Rent Arrears Lead to Tenancy Termination

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[2025] NZTT 5091173

TENANCY TRIBUNAL - Video Location

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/Flat 4, 12-[ADDRESS], [POSTCODE]

ORDER

1. This order is re-issued to correct an error in the calculation of the total bond. The total bond held is $4,780.00, not $4,870.00 as recorded in the order issued 22 January 2025.

2. The tenancy of [NAME] and [NAME] at Unit/Flat 4, 12-[ADDRESS], [POSTCODE] is terminated, and possession is granted to [COMPANY] - As [COMPANY], at 11:59pm, Friday 24 January 2025.

3. [COMPANY] is to pay part of the bond being $1,925.00 (BN-00007577) to [COMPANY] - As [COMPANY] immediately. [COMPANY] is to pay the remainder of the bond of $2,855.00 (BN-00007577) to [NAME] and [NAME]- [NAME] immediately.

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Description Landlord D [NAME] & G [NAME]-[NAME] arrears to 24 Nov 2024 $1,898.00 Filing fee reimbursement $27.00 Total award $1,925.00 Bond $1,925.00 $2,855.00

Reasons:

1. The landlord and three of the tenants, [NAME] and [NAME], attended the video hearing. [NAME] did not attend.

2. The landlord has applied for termination, rent arrears, compensation for damage to a door, refund of the bond, and reimbursement of the filing fee.

The tenancy

1. A tenancy commenced at the premises in May 2024. The tenants were [NAME] and [NAME] ([NAME]).

2. [NAME] had flatmates who resided at the premises but the above three-named were the only tenants on the tenancy agreement.

3. On 14 October 2024, [NAME] and [NAME] signed a variation of the tenancy agreement under which they became tenants. Under the same variation agreement, [NAME] left the tenancy and [NAME] and [NAME] remained as tenants.

4. At the date of hearing, [NAME] and [NAME] were no longer residing at the property. [NAME] and [NAME] were residing at the property.

Termination of the tenancy

1. It was agreed between the parties that the current tenancy should come to an end this coming Friday.

2. [NAME] and [NAME] wish to immediately commence a new tenancy at the premises following the end of this tenancy and the landlord indicated that is agreed. I leave it to those parties to enter into any new tenancy.

3. I order the current tenancy come to an end at the time and date stated.

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How much is owed for rent?

4. The landlord provided rent records which prove rent arrears began accruing from 31 August 2024. As at 13 October 2024, rent arrears totalled $2,742.86.

5. The most recent rent records provided by the landlord show that, as at 29 November 2024, rent arrears totalled $1,898.00.

6. The landlord submitted that, as at the date of hearing, a total of $4,329.92 is owed in rent, however, no rent records were filed in support of that amount.

7. [NAME] states he moved into the premises in July 2024 and paid a bond to the previous tenant, [NAME]. He says he didn’t legally become a tenant until 14 October 2024 when he signed the variation agreement. [NAME] says he should not be held liable for rent arrears which were accrued before he became a legal tenant.

8. [NAME] essentially agreed with [NAME]’s position. He stated he moved into the flat in September 2024, but also did not become a tenant until 14 October 2024. He says when he signed the variation agreement he did not know there were rent arrears owing and he does not accept he is liable for those arrears.

9. [NAME] states he and [NAME] left New Zealand on 2 December 2024 and have not returned. [NAME] says he has sympathy for the landlord regarding the arrears but says he paid his rent during the tenancy and the shortfall in rent was the result of issues with the third tenant, [NAME] and/or other flatmates. He says he is happy for his portion of the bond to be paid to the landlord towards payment of the arrears.

10. The landlord has not filed a copy of the original tenancy agreement. The landlord did file a copy of the variation agreement, which states, “The remaining (including any new tenants that have joined), tenants also agree that they accept liability for any existing rent arrears, and for the maintenance of a full bond.”

11. On the face of it, by signing the variation agreement, the remaining tenants ([NAME] and [NAME]) and the new tenants ([NAME] and [NAME]) accepted liability for rent arrears accrued under the original tenancy agreement. However, [NAME] says he and [NAME] were not made aware that rent arrears had accrued before they signed the variation agreement. They say they were not aware they were accepting liability for $2,742.86 in rent arrears.

12. In circumstances where a variation agreement states the new (and remaining) tenants accept liability for the arrears accrued under a previous tenancy, it is clearly essential that the amount owed in arrears is clearly communicated to the new tenants. The landlord did not produce any evidence that it had made Mr

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[NAME] and [NAME] aware that they were accepting liability for $2,742.86 in arrears accrued under the original tenancy agreement. I consider that sum substantial and not a minor detail which should only be included in the fine print of the variation agreement.

13. In the month after the variation agreement was signed, it appears the [NAME] made payments towards the arrears, such that by 29 November 2024, the arrears had reduced to $1,898.00. Any payments the [NAME] made towards the rent arrears between 14 October and 29 November 2024 were payments towards the arrears accrued by [NAME]. No further arrears were accrued in that 6-week period.

14. I accept [NAME] and [NAME] were not made aware of the arrears which had accrued before they joined the tenancy and therefore find [NAME] and [NAME] are not liable for rent arrears accrued before 14 October 2024.

15. I find the tenants [NAME] and [NAME] liable for rent arrears accrued up until 13 October 2024, and what remained of those rent arrears as they were at 29 November 2024. Accordingly, [NAME] and [NAME] must pay the outstanding arrears, being $1,898.00 to 24 November 2024.

16. If the landlord wishes to pursue a claim for arrears accrued after 25 November 2024 a new application will need to be filed with evidence in support of any such claim.

Refund of the bond

17. Following the end of the hearing, I made inquiries with [COMPANY] to confirm the bond held. During the hearing, [NAME] stated he and [NAME] had in the days prior authorised the release of “their part of the bond” to the landlord.

18. [COMPANY] confirmed the bond for the premises, in the names of the current four tenants, was originally held under the bond reference number 3428765-010. [COMPANY] transferred the bond into [COMPANY]’s new system and assigned it a new reference number bring BN-00007577. [COMPANY] states the current balance being held as bond is $4,780.00.

19. I order the bond be partially refunded to the landlord, in the amount of $1,925.00 as payment for rent arrears to 24 November 2024. The remainder of the bond is to be refunded to [NAME] and [NAME].

20. As I have found [NAME] and [NAME] (only) liable for rent arrears to 24 November 2024, they are not entitled to any refund from the bond.

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Is the tenant responsible for the damage to the premises?

21. A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

22. The landlord sought compensation for repairs required to a door. The landlord had filed an email from [NAME] dated 8 October 2024, in which [NAME] referred to needing to fix the door which was broken by “[NAME]”.

23. During the hearing, [NAME] emailed the registry a transaction record which he submitted was a payment he made directly to the tradesperson who came to fix the door. The transaction is for $307.24 which was paid to “[NAME]” on 20 October 2024, with reference “Broken Door.”

24. The landlord had not filed an invoice from the tradesperson in support of their claim that $207 remains outstanding. It is also unclear from the evidence filed who caused the damage or is responsible for that damage (given that no one on the original or current tenancy is called “[NAME]”).

25. In addition, [NAME] has provided evidence which suggests [NAME] paid the tradesperson directly.

26. I am not satisfied the landlord has proved their claim to the required standard and dismiss the landlord’s claim for compensation for damage to the door.

Should the tenants reimburse the landlord’s filing fee?

27. Given the landlord has substantially succeeded with the claim for rent arrears the tenants (as they were prior to 14 October 2024) must reimburse the filing fee.

[NAME]

11 February 2025

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Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or property this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your property.

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

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A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: