Tenant Ordered to Pay Rent Arrears and Break Fee After Early Termination

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[2025] NZTT 5153424, 5174033

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted] [NAME]

Landlord

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

ORDER

1. [NAME] and [NAME] must pay [COMPANY] As Agent For [NAME] $5,283.67 immediately, calculated as shown in table below.

2. [COMPANY] is to pay the bond of $2,920.00 (6516774-010) to [COMPANY] As Agent For [NAME] immediately.

Description Landlord Tenant Rent arrears to 15 March 2025 $7,404.29 Water rates $86.15 Break fee $713.23 Total award $8,203.67 Bond $2,920.00 Total payable by Tenant to Landlord $5,283.67

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Reasons:

1. Both parties attended the face-to-face hearing on 8 April 2025.

2. The tenant has applied for reduction of the fixed-term tenancy to end 4 January 2025 and refund of the bond.

3. The landlord has applied for rent arrears for the full-term of the fixed-term tenancy which ended 15 March 2025, compensation for water rates and fee for the tenant’s request to break the fixed-term tenancy. The landlord seeks refund of the bond, and reimbursement of the filing fee.

The tenancy

4. The parties entered into a fixed-term tenancy commencing 16 March 2024 and ending 15 March 2025.

5. On 28 November 2024, the tenants contacted the landlord to request they consent to an early end to the tenancy on the basis some of the tenant’s family members were moving to Auckland and they wished to rent a larger home.

6. The landlord says they agreed to the tenant being released early from the fixed- term tenancy but only on the condition they pay the break fee and that they remain liable for rent until a new tenancy commences.

7. The tenants say they agreed to pay the break fee but did not agree to remain liable for rent until a new tenancy commenced.

8. The landlord’s record of rent payments shows the tenant last paid rent on 31 December 2024, being rent up until 3 January 2025.

9. A new tenancy did not commence at the premises until 2 April 2025.

Matters not in dispute

10. The tenant does not dispute that they owe $86.15 to the landlord for unpaid water rates during the tenancy.

11. The tenant does not dispute that they owe $713.23 to the landlord for marketing costs and other costs which the tenant agreed to pay in relation to the landlord taking steps to find new tenants before the end of the fixed-term tenancy.

12. By consent, I make orders on the above two matters.

Burden and standard of proof

13. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

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14. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards.

15. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fraction more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

16. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

17. As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that:

[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant 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.

Did the parties agree to end the fixed-term tenancy early?

THE LAW

18. No fixed-term tenancy shall be terminated unless the expiry of the term of the tenancy passes, or any of sections 55AA, 56A(1), 58(1)(d), (da), 58A, 59, 59A, or 59B apply, and notice is given in accordance with the applicable section. A fixed-term tenancy may also be ended by mutual agreement of the parties.

19. The Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced. See s 66 of the RTA.

THE PARTIES’ POSITIONS

20. The landlord seeks an order for rent arrears to 15 March 2025, in the amount of $7,404.29 as per the terms of the fixed-term tenancy agreement.

21. The tenant says after they contacted the landlord on 28 November 2024 to ask that the fixed-term tenancy come to an early end, the landlord requested they complete an application form to seek the landlord’s consent and provided the tenants with an estimate of the break fee costs.

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22. The tenants say that on 11 December 2024, the landlord emailed the tenants and stated:

Thanks for your confirmation regarding the early termination of 6/60 Selo St, your vacation date is 03/01/25. I will come and complete final inspection on 06/01/25.

Kindly sign the lease break documents I sent to you on 30/11/24 and return them to me as soon as possible. Once I receive the signed documents, I will proceed to relist the property on the rental market this week.

23. The tenants say they understood the landlord’s email of 11 December 2024 to be acceptance of their request to end the tenancy early and that in that email the landlord agreed the fixed-term tenancy would terminate on 3 January 2025.

24. As referred to in the landlord’s email of 11 December, all three tenants then signed the application form on 17 December 2024 and emailed it to the landlord.

25. The application form stated: I/We understand and agree that if this application shall be successful we will be required to continue to pay rent as required under the existing Tenancy Agreement and that the remaining name tenants will take over the responsibility of rental payments and other terms and conditions stipulated in the existing Tenancy Agreement.

26. The tenants say they understood the above clause to mean that if two of the tenants were remaining they would continue to pay rent, however, as all three tenants wished to move out, there would be no remaining tenants who would take over the responsibility of paying the rent.

27. The tenants say they did not believe they agreed to continue paying rent until new tenants were found for the premises (or their original fixed-term tenancy expired).

28. The application form also stated: I/We understand and agree that if this application shall be successful we will be required to sign a written agreement to record this variation which will be an extension of the existing Tenancy Agreement and all its terms and conditions.

I/We agree the only release which is binding between the parties is in terms of the written agreement between the parties, not this present application (The document is called “Variation of a Tenancy Agreement”). Only once this application is successful and the aforementioned document is signed by all parties named on the existing Tenancy Agreement, will the [NAME] be able to vacate the premises and be released from the fixed term tenancy.

29. Both parties confirmed no further written agreement was signed by the parties (referred to above as Variation of a Tenancy Agreement) as was anticipated by the application form.

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30. The landlord says that, by signing the application form, the tenants acknowledged they would be liable to pay rent until a new tenancy commenced (or their original fixed-term tenancy expired).

31. The landlord says their email of 11 December 2024 acknowledging the tenants would move out on 3 January 2025 was an acknowledgement of their move-out date only and was not agreement that the tenants would cease to be liable for rent after that date.

MY ANALYSIS

32. By signing the application form, the tenants agreed to continue to pay rent as required under the existing Tenancy Agreement. No further written agreement was signed by the parties which could be considered a variation to the Tenancy Agreement. The second portion of the same sentence in the application form which refers to “remaining name tenants” was irrelevant in the tenant’s situation in which all three tenants were moving out. The first portion of that sentence stands alone as a commitment that while their application was being considered the tenants agreed to continue paying rent under the existing fixed-term tenancy agreement.

33. It remains unclear why the landlord did not, after accepting the tenant’s application, then request the tenant sign a variation to the tenancy agreement as was anticipated in the application form. Certainly, if the parties had done so, it would have provided the tenants with a clear understanding of the terms of the agreement they had entered into.

34. Having not done so, and in light of the tenant’s acknowledgment in the application form that they would continue to pay rent under the existing tenancy agreement, I find there was no variation to the fixed-term tenancy agreement and both parties are bound by the terms of that agreement.

35. It follows that, as a new tenancy did not commence at the premises until after the end of the fixed-term tenancy, the tenant is liable to pay rent until 15 March 2025.

36. I make an order accordingly.

37. The bond is to be released to the landlord in partial payment of the amounts ordered.

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Should the tenant reimburse the landlord’s application fee?

38. As the landlord has succeeded with the claim the tenant must reimburse the filing fee.

[NAME]

16 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: