Tenant's Imprisonment Leads to Termination of Tenancy Agreement

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[2025] NZTT 5174013

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The tenancy of [NAME] at [ADDRESS], [POSTCODE] is terminated, and possession is granted to [COMPANY], at 11.59 pm Tuesday 22 April 2025.

2. The tenant is to pay the landlord rent of $88.00 and rent arrears of $360.00 no later than Tuesday 24 March 2025.

Reasons:

1. Both parties attended the hearing by telephone.

2. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

3. 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 (“RTA”).

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4. Where the breach is capable of remedy 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.

5. Clause 26 of the tenancy agreement provides:

“You must live at the premises at all times and the premises must be used principally as a home for you and your family.”

6. The landlord gave evidence that it was advised by the tenant’s mother on 9 October 2024 that the tenant had been arrested and was held in custody. The tenant did not dispute that she has been in prison since that date and confirmed that her sentence was due for completion on 31 May 2027.

7. The landlord issued a breach notice on 28 November 2024 requiring the tenant to return to live in the property. The notice provided:

“When you signed your tenancy agreement, you agreed to live at [ADDRESS], Timaru at all times. There is a high demand for public housing support in Aotearoa New Zealand – it is important those provided with public housing are living in that home.

We understand you may no longer be living in your home. If you are not living in your home, you are not meeting the conditions of your tenancy agreement. We are therefore giving you 14 days’ notice to return to living in your home.”

8. The tenant continues in breach of her obligation under clause 26 of the tenancy agreement by not living in the property because she is in prison.

9. The tenant explained that she has been living in the property for five and a half years, has filed an appeal against her conviction and will apply for parole in the next couple of months. She wants to return to the property because her 14 and 22 year old sons are living at the property. She is also concerned about how she will clear the property of her possessions since she is in prison. She wants the tenancy assigned to either her adult son or her partner and herself.

10. The landlord is a social housing provider. It explained that its houses are assigned based on needs assessments prepared by MSD. The landlord does not assign a tenancy to persons who have not gone through the assessment process. There was no evidence before the Tribunal that either of the proposed assignees would meet the landlord’s criteria for renting a house from it or that these premises are appropriate for their needs.

11. The landlord accepts that the tenant’s position is difficult because her 14-year- old son has lived there with her for two years, although the tenancy agreement stipulates that the tenancy is for one person. It is not possible for him to apply for a tenancy because of his age. The landlord does not have any information

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as to who is his legal guardian or who has legal responsibility for him. The tenant advised that she and Oranga Tamariki had responsibility for his care.

12. The landlord expressed its willingness to assist the tenant’s adult son and partner through the process of being assessed by MSD for eligibility for a tenancy.

Consideration and decision

13. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered section 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy:

a. The history of the tenancy.

b. Whether there had been a persistent failure after repeated warnings.

c. Whether the history of breaches is such that it is unlikely the tenant would comply with their 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.

14. Having considered the evidence before the Tribunal it has determined that it would be inequitable to refuse to terminate the tenancy for the following reasons:

a. The term in the tenancy agreement is reasonable given the public responsibilities of the landlord in providing social housing. The Tribunal is satisfied that, having regard to the nature of the tenancy, the restriction imposed by clause 26 should be permitted. See section 11(1)(b) RTA.

b. The landlord has given the tenant over three months to remedy the breach and she has not been able to do so. She has not been living in the property for some five months. The outcome of any appeal is uncertain and the opportunity for parole is still some months away. The tenant is unable to return to the property and comply with this term for the foreseeable future.

c. The tenant has been convicted of a criminal offence for activities on the property. The breach has arisen as a direct result of the tenant’s criminal offending. While remedying the breach is beyond the tenant’s control, the actions which have led to the breach were intentional and the consequences inevitable.

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d. The breach is serious given the nature of the tenancy agreement and the landlord’s purpose as a social housing provider. The landlord is unable to meet its objectives and the expectations of the public if housing is not used and occupied by those who have been assessed as requiring its assistance. It is reasonable for the landlord to refuse to hold a property available while its tenant does not live there because she is in prison serving a sentence with over two years more to run, for offending which occurred on the property.

e. The landlord is unable to assign the tenancy without the proposed tenant being assessed by MSD and it being determined that this property is appropriate for the proposed tenant’s needs. The tenancy agreement was with the tenant. The property was allocated to her based on her needs- based assessment. It is not possible for this process to be bypassed and the property assigned to persons unknown to the landlord who have not been assessed. The property may not be deemed appropriate for those applicants. The landlord is unable to agree with the tenant’s proposal. This is not a viable alternative to termination.

f. Termination is a proportionate response to the tenant’s continuing breach of the tenancy agreement. The landlord has a duty to responsibly manage its housing portfolio and allocate housing based on need as assessed by MSD. It is unreasonable for the landlord to continue a tenancy where the tenant is not living in the property and is unlikely to do so for some considerable time. The landlord also has a duty to house those people on its waiting list.

g. The landlord provided rent records which prove the rent was 21-days in arrears at the date of the hearing. The Notice of Hearing confirms that the Tribunal would consider termination under sections 55 and 56(2) RTA. The landlord preferred to seek termination on the basis of the tenant’s ongoing breach of clause 26. If it had sought termination under section 55 RTA, the Tribunal would have been obliged to terminate the tenancy subject only to the discretion in section 55(1A) RTA. It is appropriate to make an order for payment of the outstanding amount.

h. The tenant has no ability to make rent payments while she is in prison. The income-related rent was assessed on her sole source of income being a benefit. Because she is in prison, payment of the benefit has now ceased and the tenant is without income. The tenant’s ability to continue to pay the rent must be seriously in doubt.

i. The landlord has agreed to a termination date in one month’s time. This is to allow the tenant’s sons to apply through MSD for social housing with the landlord. As noted, the landlord has offered to provide assistance to them

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through this process and the tenant has been provided with the landlord’s representative’s contact details so that this can be arranged.

[NAME]

18 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: