Tenant Ordered to Pay Rent Arrears but Tenancy Not Terminated

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[2025] NZTT 5102196

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [NAME] must pay [COMPANY] As Agent For [NAME] $1,632.87 immediately, being rent arrears to 28 March 2025 of $1,390.00 and reimbursement of the filing fee of $27.00.

2. The landlord’s application for termination of the tenancy is dismissed.

Reasons:

1. The landlord attended the hearing by telephone.

2. The tenant was telephoned twice but did not answer and so messages were left.

3. The landlord has applied for rent arrears and water rates and has provided rent and water rates records which prove the amount owing.

4. The landlord has also applied for termination of the tenancy as the tenant is in breach of the tenancy agreement by being in rent arrears and not paying the water rates. See section 56(1) Residential Tenancies Act 1986 (“RTA”).

5. The landlord issued a 14-day notice to the tenant on 9 December 2024 that she was in breach of the terms of her tenancy agreement and owed $1,390.00 in

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rent arrears and $3.09 in water rates. This breach had not been remedied at the date of the hearing.

6. Before making the termination order for a breach capable of remedy that has not been remedied, the Tribunal must determine whether the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy. See section 56(10(c) RTA.

7. The District Court in [NAME] v [NAME] DC Porirua CIV-2010-091-110, 28 June 2010 considered that the following were relevant factors in considering a decision under section 56 RTA:

a. Whether the breach was inadvertent or deliberately committed.

b. Whether the breach was within or beyond the tenant’s control.

c. Whether the breach involved an immoral or illegal use of the property.

d. Whether a tenant has made or will make good the breach of the covenant and is able and willing to fulfil his obligations in the future.

e. The conduct of the landlord.

f. The personal circumstances of the tenant.

g. The financial position of the tenant.

h. The gravity of the breach.

i. Whether a breach has caused lasting damage to a landlord.

j. Whether considering the nature of the breach, it is proportionate to evict the tenant.

8. Considering those factors in this case:

a. Because the breach has continued now for over three months, the breach is intentional.

b. The tenant did not attend the hearing and so the Tribunal has no evidence of why the tenant has persisted in this breach.

c. There is no suggestion of the tenant’s immoral or illegal use of the property.

d. There is no reason to believe that the tenant will not remedy the breach. The amount of the rent arrears is less than the bond.

e. The landlord is out of pocket $1,390.00 and has been waiting more than three months for payment.

f. The rent is in arrears by two weeks. Section 55(1) RTA provides that the Tribunal shall make an order terminating a tenancy where rent is three weeks in arrears. As noted, the amount outstanding is covered by the

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bond. While the breach is longstanding, it is not of an amount that would give rise to immediate termination under section 55(1) RTA.

g. Termination for rent arrears where the tenant is not three weeks in arrears is not a proportional response. The RTA makes it clear that when rent is at least three weeks in arrears, termination is a proportionate response.

h. Section 55(1)(aa) RTA provides for termination for persistent rent arrears where three notices are issued to the tenant for persistent rent arrears. That is a procedure the landlord could have pursued if it was seeking termination. It has not done so.

9. For these reasons the Tribunal concludes that it would not be inequitable to refuse to grant a termination order.

10. If the Tribunal has not granted a termination order, then it has no ability to make a conditional termination order under section 55(1A) RTA.

11. The tenant needs to be aware that she needs to either make payment of the amount awarded the landlord under this order, or come to a satisfactory arrangement with the landlord to pay it off.

12. [COMPANY] As Agent For [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

G Baker

28 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: