Tenant's Fixed-Tenancy Reduced Due to Severe Hardship

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[2025] NZTT 5153340

TENANCY TRIBUNAL AT PORIRUA | TE TARAIPIUNARA RETIHANGA KI PORIRUA

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

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

ORDER

1. The term of the fixed-term tenancy of [NAME] at Unit/Flat [ADDRESS], [POSTCODE] is reduced. It ended on 12 February 2025.

2. [COMPANY] must pay [NAME] $2,997.00 immediately.

Description Landlord Tenant 2 weeks rent in advance $990.00 Filing fee reimbursement $27.00 Bond (not lodged) $1,980.00 Total payable by Landlord to Tenant $2,997.00

Reasons:

1. Both parties attended the hearing. The landlord attended by phone.

Should the fixed term be reduced?

2. On 26 January 2025 the landlord signed the tenant up to a fixed term tenancy at [ADDRESS], Otaki. The tenancy was to commence on 30 January 2025. At the time the agreement was signed the landlord knew that the previous tenant had caused significant damage to the premises. The landlord

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should have informed the applicant about that and should also have known that the premises would not be ready to be occupied 4 days later. The tenant discovered the damage on 28 January. Because of the condition of the property and the landlord’s inability to remedy the problem the tenant applied to the Tribunal, on 1 February 2025 to end the fixed term tenancy. However she needed a place to live and the landlord suggested changing the tenancy commencement date to 12 February 2025. The tenant offered to assist the landlord by cleaning etc and it is clear that if the premises was made ready for occupation the tenant would have moved in. However by 12 February the property was still not ready. For example there was water running directly from the basin to the ground. The tenant informed the landlord that she would proceed with her Tribunal application to end the tenancy.

3. The tenant did not occupy the premises at any time before informing the landlord that she would not move in. The tenant found a different property to rent.

4. The Tribunal may reduce a fixed term tenancy where:

a. there has been an unforeseen change in the applicant’s circumstances; and

b. there would be severe hardship to the applicant if the term is not reduced; and

c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.

5. I am satisfied that there was an unforeseen change in the applicant’s circumstances. She was not able to begin her tenancy, and more importantly, even though the landlord carried out some remedial work, there was uncertainty when the premises would be ready to be occupied. I am satisfied that this was a severe hardship for the tenant, a greater hardship than for the landlord. The landlord would be losing rent but the tenant would be paying double rent every week if the Tribunal ended the tenancy after 12 February 2025.

6. I am satisfied that because the premises was not ready for occupation by 12 February 2025 and there was still uncertainty about when the remedial work would be completed, the fixed term should be reduced to 12 February 2025.

Should compensation for inconvenience be paid to the tenant?

7. In have be considered whether the landlord should pay compensation to the tenant for what happened. However I have declined making an order for compensation because the tenant held onto the key after 12 February in order

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to pressure the landlord to return her bond and two weeks rent in advance. The tenant should have returned the key.

Should the bond be refunded to the tenant?

8. The tenant paid a bond of $1,980.00 to the landlord by direct credit from [NAME]. The tenant is claiming the bond be paid back to her. The landlord has made a submission to the Tribunal that [COMPANY] should be able to retain bond money it holds but [COMPANY] has not filed a counterclaim with Tenancy Services.

9. Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond must be refunded in full to the tenant.

Should rent in advance be refunded to the tenant?

10. The landlord has received 2 weeks rent in advance, $990.00, by direct credit from [NAME]. The tenant is claiming the rent in advance be refunded to her.

11. I am satisfied that no amount of rent is due for the tenancy because the tenant was unable to occupy the premises either by the original date or the revised date. The landlord is to refund the rent in advance to the tenant.

Filing Fee

12. Because the tenant has been successful with the claim the filing fee of $27.00 is ordered to be paid by the landlord.

Note:

13. The landlord has not lodged the bond with the Bond Centre within the required time.

14. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

15. The landlord has committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the

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effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

16. However in this case the Tribunal is unable to make an order for exemplary damages because the applicant did not apply for exemplary damages in her application. If, for any reason, the landlord requests a rehearing and the rehearing is granted, the applicant may amend her application to include exemplary damages.

[NAME]

21 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: