Tenancy Tribunal dismisses landlord's claims for rent arrears and filing fee

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[2025] NZTT 5208257

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Unit/Flat Flat, [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must collect the sunlounger and plastic bin full of sand from the rental premise between 12pm and 2:00pm on Thursday 4 June 2025. If [NAME] fails to remove these items from the premise by 2:00pm on Thursday 4 June 2025, [NAME] must pay [NAME] $50.00 immediately for the cost of disposing of these items.

2. The landlord’s claims for rent arrears of $657.14 and reimbursement of the filing fee are dismissed for lack of sufficient evidence to prove these claims on the balance of probabilities.

Reasons:

1. Both parties attended the hearing.

2. The landlord has applied for rent arrears, a disposal order, compensation for disposal of items left at the premise and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent?

3. The tenant gave 4 weeks notice on 11 February 2025, because the tenants above her have teenage children who make noise and have lights on late into

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the night and early morning. This includes gaming and watching TV and other activities that emit loud noises that disrupt the tenant and her 4 year old child’s sleep. The tenant is a student and she say she could not study during the day due to the level of fatigue from disturbed sleep each night.

4. In her notice terminating her tenancy she states: Hi Roz,

I hope this message finds you well. I have been looking and looking, and have just found one place that would suit us. I gave your contact details as reference, please please support our application :). I think the property company is called [NAME].

Our flat is clean and tidy as always and will clean it thoroughly before we leave- I always keep my landlords happy 😊. Today I got the refund from the bank, so I am very thankful for that. I will make sure pay all the bills before I leave and water and power for the time we were here. If you are happy to give me a good reference, I would like to give you my 4 weeks of notice from today, if that is ok with you.

Please let me know if you have any questions,

Kind regards,

[NAME] and [NAME]

5. This termination notice is very clear that the tenant intends to move out 4 weeks from 11 February 2025, which is a week’s more notice than she was legally required to give the landlord. This notice makes her last day of the tenancy 10 March 2025.

6. Sometime after the termination notice the tenant sends three messages to the landlord as follows: 1. Good afternoon Roz, I hope you are well. I hope you understand me and [NAME]. Because

we are not sleeping well at night, it is affecting my ability to understand my reading etc. I can't concentrate and do all the reading on time. I am happy to stay until 23 February, Sunday. Please let me know

2. Are you ok for us to move out on 23rd? It is next Sunday. Sorry about this but I need to do the things to look after myself. I just feel too exhausted to do anything atm. I need to recover and get enough sleep asap.

3. Hi Roz, there is still noise upstairs last night, I have no option but plan to move out asap. I organized moving out on 23rd Feb, next Sunday.

7. The landlord responded to the third message with “Yes. I won't be home but we will ring each other on the Monday”.

8. The tenant completed a bond form on 25 February 2025, that both parties signed. This form states that the tenant will get all her bond money back, minus $13.00 for water rates arrears. It makes no mention of the 10 days rent in lieu of notice the landlord is now claiming.

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9. The landlord submitted this signed form to [COMPANY] for processing and the full bond, minus $13.00, was paid to the tenant.

10. The tenant says that she understood from the landlord replying “yes” to her third text message, combined with the signed Bond form that states she gets all her bond back, minus the $13.00 water rates, that the landlord had agreed to the earlier move out date without requiring payment for the remainder of her 4 weeks’ notice period.

11. On 1 March 2025, the landlord contacted the tenant again saying “I need you to hand sign a new refund form and when can you get the sun lounger?” The tenant replied “Why do I need to sing again?”. The landlord responded “Because our signatures did not match on the manual Bond Lodgement form versus the electronic signature”. The tenant replied “Pls Send me the form to [EMAIL] . I will sing it and send it to you”.

12. Some time later, on 1 March 2025, the landlord says she realised she made a mistake on the bond refund form she and the tenant signed and submitted. At this time the landlord sent a modified bond refund form to [COMPANY] claiming $657.14 rent arrears and $50.00 disposal of good fee from the bond and asked it to process this form, that was not signed by the tenant, instead of the signed form she had sent for processing initially on 25 February 2025 and then again on 1 March 2025.

13. [COMPANY] called the tenant, one or two weeks later to clarify what was to be paid back to the tenant because of the confusion caused by the second bod refund form that had not been signed by the tenant. The tenant confirmed that the landlord had agreed to end the tenancy on 23 February 2025 and to her getting a full refund of the $1,840.00 bond she had paid minus $13.00 for the final water rates owing. [COMPANY] made this payment to the tenant.

14. The landlord says she was confused when she completed, signed and got the tenant to sign the bond refund form, and that she miscalculated the amount the tenant owed her. She stated that she had also been confused when she lodged the bond initially and had paid $2,560.00 to [COMPANY] in error. She stated she had received the overpayment back.

15. The tenant says she vacated the premise on 23 February 2025 acting on the reasonable belief that the landlord had agreed to the earlier termination date without penalty. She says the bond form the landlord completed, had her sign and then submitted to [COMPANY] reinforced her reasonable belief that the landlord had agreed to release her from the tenancy on 23 February 2025 without penalty. She stated that she would not have moved out earlier if the landlord had made it clear that the tenant would remain responsible for paying rent in lieu of the remainder of the notice period. Further, it came as a surprise to the tenant when [COMPANY] contacted her about the amended bond form, as the landlord had not made contact with the to explain the error on the

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initial form or to inform her that she intended to hold her to a full three weeks’ notice, meaning the tenancy ending on 4 March 2025.

16. The landlord says she tried to call the tenant, but the tenant did not answer her call. The landlord did not email or text the tenant asking for a discussion about the alleged misunderstanding about whether the landlord had or had not waived the remainder of the notice period.

17. The tenant says that the landlord should be estopped from relying on the original termination notice to claim an additional 10 days rent as it would be inequitable for the landlord to rely on that original notice of termination of tenancy when the text message saying “yes” to an earlier move out date and the completed and signed bond form that clearly states the only monies owing to the landlord at the end of the tenancy is $13.00 for water rates.

18. On balance, I find that the landlord’s text response “yes” was not in and of itself sufficient confirmation that she was agreeing to waive the remainder of the notice period. It confirms that the landlord understands the tenant intends to move out on 23 February 2025 and is silent about what that means to the rent for the remainder of the notice period. The tenant also never clarified this with the landlord. However, I find that the landlord completing, signing, getting the tenant to sign and then submitting the completed bond form to [COMPANY] on 25 February 2025 and again on 1 March 2025, did lead the tenant to believe that the only money she owed the landlord was $13.00 for the water rates. Further, I find the landlord took no steps to convey to the tenant that she had completed the bond refund form incorrectly and that she had always intended to hold the tenant liable for the full notice period.

19. The evidence suggests the landlord, at some time on 1 March 2025, changed her mind, reconsidered her position, and attempted to renege on the agreement she and the tenant had signed on 25 February 2025, resigned on 1 March 2025 and submitted to [COMPANY]. I find it would be inequitable for the landlord to now resile from the agreement (bond refund form) that she and the tenant made on 25 February 2025, when they had discussed it, signed it and the landlord had submitted to [COMPANY] for payment to the tenant.

20. A landlord cannot enter into a signed agreement, change her mind and be allowed to unilaterally modify it without any discussion and agreement with the tenant.

21. For the reasons outlined above, I find the tenancy ended on 23 February 2025 and that no rent arrears are owed to the landlord.

Did the tenant comply with their obligations at the end of the tenancy?

22. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all

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chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

23. The tenant did not remove a sun lounger and a plastic bin full of sand.

24. The tenant has failed to collect these items to date.

25. At today’s hearing, the tenant agreed to collect these items between 12pm and 2pm tomorrow, being 4 June 2025. If the tenant does not collect these items by 2pm on 4 June 2025, the landlord may dispose of these items and bill the tenant $50.00 for the disposal cost.

26. The amount ordered is proved.

Reimbursement of filing fee

27. [NAME] has not wholly or substantially succeeded with her claim I dismiss her claim for reimbursement of the filing fee.

[NAME]

03 June 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].