Tenant's Breach of Occupying Premises Results in Conditional Tenancy Termination
📌 In brief
The Tenancy Tribunal decided to terminate the tenancy agreement conditionally because the tenant failed to occupy the premises as required by the tenancy agreement. The landlord had given the tenant a 14-day notice to return to the premises, but the tenant did not comply.
⚖️ Legal holding
A tenant's failure to occupy the premises as required by the tenancy agreement can lead to termination of the tenancy.
📖 What the law says
This rule allows a tenant to ask the Tenancy Tribunal to cancel a landlord's notice to end a tenancy if the tenant believes the landlord gave the notice because the tenant complained or used their rights. The tenant must apply within 14 working days of receiving the notice.
Plain-English explanation — does not replace advice from a lawyer.
📖 Technical summary
The Tribunal terminated the tenancy conditionally based on the tenant's failure to occupy the premises.
📜 Headnote Official document
The Tenancy Tribunal terminated the tenancy agreement conditionally based on the tenant's failure to occupy the premises as required by the tenancy agreement. The landlord had served a 14-day notice requiring the tenant to return to the premises, which was not complied with.
📚 Full judgment Official document
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[2025] NZTT 5190851
TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA
APPLICANT: [redacted]
Landlord
RESPONDENT: [redacted]
Tenant
TENANCY ADDRESS: Unit/Flat [ADDRESS], [POSTCODE]
ORDER
1. If [NAME] has not returned to occupy the premises at Unit/[ADDRESS], [POSTCODE] by noon on Friday 28 March 2025 then her tenancy shall terminate immediately, and possession revert to [COMPANY]
2. [NAME] must pay [COMPANY] $216.00 immediately, being rent arrears to 18 March 2025.
Reasons:
1. The landlord attended the hearing, by telephone.
2. Unfortunately, the Tribunal was unable to contact the tenant.
3. The landlord has applied for termination of the tenancy for breach of the tenant’s obligation to live at the premises.
Should the tenancy be terminated?
4. The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986.
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5. Where the breach is capable of remedy, as is the case here, the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so.
6. The evidence supports that the tenant has breached her obligations by failing to occupy the premises as per the tenancy agreement.
7. After finding the premises vacant the landlord served a 14-day notice on the tenant on 14/1/2025, asking the tenant to return to occupy the premises by 4/2/2025.
8. As at the last inspection on 14/2/2025 the tenant had not remedied the breach.
9. In exercising the discretion under section 56 I need to consider whether it would be inequitable to refuse to terminate the tenancy.
10. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the Court at paragraph 61 set out the factors which are relevant to whether it would be inequitable to refuse to terminate a tenancy:
a. The history of the tenancy
b. Whether there has been a persistent failure after repeated warnings
c. Whether the history of breaches was such it was unlikely the tenant would comply with her obligations in the future
d. Whether the breach was inadvertent or deliberately committed
e. The conduct of the landlord
f. The gravity of the breach
g. Whether termination is a proportionate response to the breach.
11. The tenancy began on 9/10/2023 so is not a very long standing tenancy.
12. The evidence of the landlord after contacting the tenant on 29/1/2025 was that she was in Australia, and no one was residing at the premises.
13. The inspection by the landlord on 14/2/2025 found rotting food, mail and that the power had been disconnected.
14. On 3/2/2025 the landlord received a screen shot of a flight boking from the tenant which suggested she was returning to New Zealand on 23/3/2025.
15. Rent records support that rent payments have been sporadic and the tenant is currently in arrears.
16. The landlord has been unable to contact the tenant since 3/2/2025.
17. The question for the Tribunal is having established that the tenant breached her obligation under the tenancy agreement, is whether as a matter of proportionality termination is an inequitable response having regard to the
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tenant’s conduct throughout the tenancy and the likelihood of her complying in the future with her obligation.
18. Termination of a tenancy has serious consequences for a tenant.
19. Continued occupation is an important element of the tenancy agreement as per clause 14.
20. I consider having regard to the facts of this case, in particular that the tenant is overseas and no longer living in the premises, that it would not be inequitable to terminate the tenancy.
21. However, considering the screen shot of a flight booking for 23/3/2025 I have made the termination conditional on the tenant not occupying the premises by 28/3/2025.
22. The landlord did not ask for either the filing fee suppression.
[NAME]
19 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:
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The tenant failed to occupy the premises as required by the tenancy agreement.
- The landlord served a 14-day notice to the tenant requiring her to remedy the breach.
- The tenant was overseas and not living in the premises.
- The breach was considered incapable of remedy due to the tenant's actions.
❌ Tends to be rejected
- The tenant provided a screenshot of a flight booking suggesting she would return to New Zealand.
- The breach was not deemed to be persistent despite previous warnings.
- The landlord's inability to contact the tenant since February 3, 2025, was considered.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Tenancy Tribunal decided to terminate the tenancy agreement conditionally if the tenant did not return to occupy the premises by a specified date.
What was the dispute about?
The dispute was about whether the tenancy should be terminated due to the tenant's failure to occupy the premises as required by the tenancy agreement.
How did the court decide, and why?
The court decided to terminate the tenancy conditionally because the tenant had breached their obligation to live at the premises and had not remedied the breach within the required timeframe.
Which laws or rules were applied?
The Residential Tenancies Act 1986, specifically section 54, was applied.
What was the argument that mattered most?
The most critical argument was that the tenant had breached their obligation to live at the premises and had not remedied the breach despite receiving a notice.
Was the decision for or against the person who brought the case?
The decision was for the landlord who brought the case.
What does this mean for someone in a similar situation?
For someone in a similar situation, failing to occupy the premises as required by the tenancy agreement could lead to the termination of the tenancy agreement.
What evidence or documents mattered?
The evidence included the landlord's service of a 14-day notice and inspections showing the premises were unoccupied.