Tenancy Tribunal Terminates Tenancy for Rent Arrears

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[2025] NZTT 5198811

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: Room 3, [ADDRESS], [POSTCODE]

ORDER

1. The tenancy of [NAME] at Room 3, [ADDRESS], [POSTCODE] is terminated, and possession is granted to [NAME], immediately.

2. The [COMPANY] is to pay the bond of $260.00 (3053565-019) to [NAME] immediately.

3. [NAME] must pay [NAME] $187.00 immediately, calculated as shown in the table below:

Description Landlord Tenant Rent arrears $420.00 Filing fee reimbursement $27.00 Total award $447.00 Bond $260.00 Total payable by Tenant to Landlord $187.00

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Reasons:

1. The landlord attended the hearing via remote teleconference. An attempt was made to contact the tenant on the telephone number provided. The attempt was unsuccessful.

2. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, rent arrears and refund of the bond.

3. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That includes a requirement that the applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood.

4. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. This obligation is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

5. As noted by the District Court in Kaipo v Clarke & McCarthy1 in practical terms this means that:… [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the tenant to provide the evidence necessary to prove the case. If the tenant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the tenant 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.

6. The parties signed a house sharing agreement on 23 April 2019 which records:

This agreement is between the Head Tenant and [NAME]

The [NAME] and the head tenant agree to share premises on the following terms:

a. The agreement starts on 24 April 2019 and will continue on a weekly/fortnightly basis

b. The rent is $130.00 per week/fortnight and is to be paid weekly/fortnightly in advance by the [NAME] to the head tenant/landlord

c. A bond of $260.00 payable to the head tenant. A written receipt will be given to the [NAME].

d. The [NAME] cannot assign the right to live in the flat

e. If the head tenant receives notice from the landlord, the head tenant will give a copy of the notice to the [NAME] immediately.

1 Kaipo v Clarke & McCarthy (DC) TT233/02

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f. This agreement can be terminated by 14 days’ notice given by either party in writing.

g. The [NAME] shall not keep in pets on the premises without the head tenant’s permission

h. The [NAME] must not remove any chattels or fixtures from the premises that do not belong to the [NAME]

i. At the end of this agreement, the head tenant will return the bond to the [NAME] immediately. The head tenant can deduct from the bond any cost which is outstanding and is the responsibility of the [NAME]

j. In the event of any dispute, the parties agree that the dispute will be determined by the Disputes Tribunal.

7. The address of the property is recorded as room 3, [ADDRESS], Riccarton, Christchurch.

The landlord’s position

8. The landlord says that the tenant shares the house with 3 other people. Everyone living there has signed a house sharing agreement.

9. The landlord advertised the room on Trademe as a room for rent. The tenants only need to provide 14 days’ notice to move out.

10. Most importantly, the landlord does not live there has never done so. The tenant pays $140.00 each week for rent and pays this directly to the landlord. The rent includes power and internet.

11. The landlord received a bond from the tenant and lodged this money with the [COMPANY]. The [COMPANY] records confirm the same.

Jurisdiction

12. Questions of jurisdiction are fundamental and must be decided before the Tribunal can go on to make any other findings in a case. Put simply, if there is no jurisdiction, then the Tribunal cannot proceed to hear the case.

13. The Tribunal can only consider disputes in relation to residential tenancies which fall within the Residential Tenancies Act (“RTA”) between a landlord and a tenant or between a landlord and the guarantor of a tenant.

14. The RTA sets out the relevant definitions.

15. A landlord in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement. A tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement.

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16. A residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.

17. A tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy.

18. A tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises.

19. There is a statutory presumption that the RTA will apply to all residential tenancies, unless specifically excluded by the RTA. Parties cannot contract out of the RTA.

20. The Act sets out several cases which are excluded from the RTA.2

Outcome as to jurisdiction

21. As noted above the landlord maintains that they have never resided at the tenancy address. In my view, notwithstanding the house sharing agreement, this is essentially a room-by-room tenancy to which the Tenancy Tribunal has jurisdiction.

22. I consider the premises were not principally used as a place of residence for the landlord or a member of the landlord’s family for the duration of the tenancy.

23. I consider the landlord has provided sufficient evidence that the tenants occupy the premises on a room-by-room arrangement, whereby they share part of the premises. I consider it was not used principally as the landlord’s place of residence.

Should the tenancy be terminated?

24. Where a landlord applies to terminate for breach, and rent is at least 21 days in arrears on the hearing date, the Tribunal must terminate the tenancy. See sections 55 and 56(2) Residential Tenancies Act 1986.

25. Rent is at least 21 days in arrears at the hearing date. The tenancy is terminated.

How much does the tenant owe?

26. The landlord provided rent records which prove the amount owing.

2 See section 5 of the RTA

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27. Having sighted the landlord’s rent ledger I am satisfied that the tenant is responsible for the rent arrears.

28. [NAME] has wholly succeeded with the claim I must reimburse the filing fee.

[NAME]

23 April 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: