Tenancy Terminated for Non-Payment of Rent and Electricity Charges

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[2025] NZTT 5181813

TENANCY TRIBUNAL AT HASTINGS | TE TARAIPIUNARA RETIHANGA KI HERETAUNGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The tenancy of [NAME] at [ADDRESS], [POSTCODE] is terminated, and possession is granted to [NAME], immediately.

2. [NAME] must pay [NAME] $13,887.25 immediately, calculated in the table below:

Description Landlord Tenant Rent arrears to 23 January 2025 $12,750.00 Electricity $1,110.25 Filing fee reimbursement $27.00 Total award $13,887.25 Total payable by Tenant to Landlord $13,887.25

Reasons:

1. The landlord attended the hearing which was held by teleconference. The tenant was called twice on the number specified in the Notice of Hearing, which was duly served to her e-mail address. Neither call was answered. Unsuccessful attempts were also made to call the tenant on other numbers given to the landlord by her.

2. The landlord has applied for termination of the tenancy, rent arrears and compensation for electricity use.

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3. The landlord was unable to provide a copy of the tenancy agreement signed by the tenant. He has however provided a copy of the agreement which was signed by him and sent to the tenant on 20 September 2024. The tenant confirmed that she could come and sign the agreement the next day. The landlord says she did, but kept the signed agreement.

4. The terms of the agreement are consistent with those previously outlined by the landlord and confirmed by the tenant.

5. I am satisfied that there was an agreement between the parties under which the tenant would rent the premises, fully furnished, from 27 September 2024, at a weekly rent of $750.00, including wi-fi but excluding power.

6. The landlord’s evidence satisfies me that the tenant did not pay the bond and has paid no rent or for any electricity used. The tenancy is terminated. See section 55(1)(a) Residential Tenancies Act 1986.

7. The tenancy began on 27 September 2024. This application as brought by the landlord on 27 February 2025. The landlord would have been entitled to seek termination of the tenancy after the tenant was more than 21 days in arrears.

8. That gives rise to the question of whether the landlord has met his obligation under s.49 RTA which provides that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

9. In Huang v Ashworth1 the Tribunal had determined that the landlord should not be entitled to recover more than 3 months’ rent arrears.

10. On appeal to the District Court2, the Court confirmed that a landlord has an obligation to mitigate rent arrears losses. In circumstances similar to this case, where the landlord had made several attempts to address the rent arears directly with the tenant, the Court said at paragraph [18], “I consider that [the landlord’s] attempts to resolve the issue of rent arrears without resorting to eviction were reasonable, especially for a tenancy that had lasted close to four years. But I qualify that: it is reasonable only up to a point. We were tenant repeatedly breaches promises to make up arrears and instead additional arrears are incurred there comes a point when it is being naive or careless to your own interests to persist giving the tenant more time to pay. For that reason I do not consider that the full arrears can be claimed. In other words I'm satisfied of balance of probabilities that there was some fairly to mitigate loss but less than that assessed by the Tribunal (3 months).”

1 Huang v Ashworth [2023] NZTT 4470826, 4599009 2 Huang v Ashworth [2024] NZDC 15726

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11. The Tribunal must assess, in the circumstances of each case, whether the steps taken by a party to mitigate claimed losses, were reasonable.

12. Here, I find that the relevant factors are:

a. the tenant did not pay the bond or rent in advance at the beginning of the tenancy and in fact paid no rent at all – that is different than in Huang, where the tenant had a previously sound rent payment record;

b. the landlord made several attempts to engage with the tenant to have the rent arrears paid, in response to which the tenant gave the landlord potentially plausible explanations for her inability to have rent payments set up through WINZ;

c. in February 2025 the landlord attended a meeting with the tenant and WINZ to try and work through the barriers to setting up the WINZ rent payments. He became aware then that the tenant was not eligible for WINZ support with the rent, from that at that point the landlord brought the application to terminate the tenancy.

d. the premises were being sold. Had the tenancy been terminated, the premises would not have been able to be re let and it was therefore in the landlord’s financial interests to maintain the tenancy, and the tenant’s liability for rent, for as long as possible prior to the sale completing.

13. The steps taken by the landlord to try and address the rent arrears were reasonable. However, as was found by the District Court in Huang, in my view the tenant’s persistent failure to pay any rent, despite the assurances given, meant that it would have been reasonable for the landlord to take steps to end the tenancy before he did.

14. My assessment is that even with the steps the landlord took to try and address the rent arrears and the assurances and explanations he was given by the tenant, 3 months of non-payment is a more than sufficient period to trigger a need to bring the tenancy to an end. Adding to that a further month to have an application determined by the Tribunal, had the landlord taken those reasonable mitigation steps, the tenancy would have been ended with 4 months’ rent owing. The landlord’s claim should be limited to 17 weeks’ rent.

15. The landlord has provided electricity charge invoices. The tenant should be required to pay those charges up to the invoice for the billing period ending 29 January 2025.

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16. [NAME] has substantially succeeded with the claim I must reimburse the filing fee.

[NAME]

27 March 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: