Tenant Wins Right to End Tenancy on Fixed Term Expiry

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[2025] NZTT 5061050, 5083589

TENANCY TRIBUNAL - Christchurch | Ōtautahi

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY] As Agent For [NAME] must pay [NAME] and [NAME] $297.00 immediately, calculated as shown in table below.

2. [COMPANY] is to pay the bond of $2,520.00 (5931881-005) to [NAME] and [NAME] immediately.

3. The landlord’s application is dismissed.

4. The tenant’s claims for compensation are dismissed.

Description Landlord Tenant Rent overpaid $270.00 Filing fee reimbursement $27.00 Total award $297.00 Bond $2,520.00 Total payable by Landlord to Tenant $297.00

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Reasons:

1. Both parties attended the hearing. [NAME] and [NAME] attended on behalf of the landlord.

2. The landlord has applied for rent arrears, compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

3. The tenant has applied for a full refund of their bond and compensation for costs and expenses incurred during the tenancy due to alleged landlord breaches, and refund of the filing fee.

How much is owed for rent?

4. The tenant’s signed a fixed term tenancy on 27 October 2023 with an end date of 27 October 2024.

5. The tenancy agreement included a section headed Additional Terms and Conditions where paragraph 12 reflects the legal requirements under sections 60A and 60B of the Residential Tenancies Act 1986 (the Act).

6. The paragraph says:

Fixed term tenancies - Note: At the end of the fixed term, the tenancy agreement will automatically convert to a periodic tenancy agreement at the end of the fixed term unless: Before the expiry, the parties may agree to extend, renew or end the fixed term tenancy or; The tenant is required to give written notice of their intention not to continue with the tenancy by giving at least 28 days Notice before the expiry or; The landlord gives written notice to end the fixed term, using one of the reasons listed in the Residential Tenancies Act 1986 Section 50(1)(a) to (b) that allows for termination of both fixed term and periodic tenancies or; The tenant is required to give written notice of their intention not to continue with the tenancy or to renew it, by giving at least 28 days Notice before the expiry. Once the tenancy has converted to a periodic term, the tenant must serve 28 days Notice in writing to the landlord to terminate the tenancy and vacate. (emphasis added)

7. In late July 2024, the landlord emailed the tenant offering an extension, following the end of the fixed term, to 2 November 2025 and asking that the tenant make contact if they wished to discuss anything further.

8. Having not heard from the tenant, the landlord followed up with another email on 15 August enclosing the documents for extension again.

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9. The tenant replied, the same day, that they did not wish to extend and asked the landlord to help them secure a new tenancy. The landlord responded, again on the same day, saying, “When you have a firm date that you intend to vacate following expiry, you will need to provide at least 28 days’ notice and we will then action it in our system and notify the [NAME].”

10. The tenant said they contacted their personal [NAME] manager on 1 October for clarity about the notice required. The tenants said the manager had referred to the automatic periodic tenancy provisions and the notice requirements around ending that. The tenants’ evidence was that they told the manager that, “We’ll be able to find a house before that” and the manager had said, “Just let me know” in relation to a question about the return of keys. They gave evidence that the manager had specifically said they did not have to give 28 days’ written notice.

11. The tenant provided a screenshot of an incoming call from the [NAME] manager on 1 October 2024 as evidence of this conversation.

12. The tenant had also provided evidence of a request for a transcript or recording of this phone call from their telecom provider, but this had been declined as such recordings are not kept by the phone company.

13. The tenants’ actions and behaviour following this phone call align with what they recall was said, being that no written notice was required if they left on the expiry of the fixed term. They found a new [NAME] and planned to be out of the premises by the fixed term end date.

14. The landlord representative said that these comments would not have been made. They gave oral evidence that company policy would always require notice to be given in writing as stated in their second email to the tenant on 15 August.

15. Although the circumstances leading to this claim were made clear in the tenants’ application, the [NAME] manger who allegedly made the assurances to the tenants that no notice was required was not present at the hearing so was unable to confirm or deny what was said.

16. The tenant next emailed their [NAME] manager on 23 October 2024 to say, “We managed to find a new house so we’ll be moving out this week. We are happy to handover the keys on 28th of October…”

17. There is no evidence to suggest that this email was actioned in any way. The [NAME] manager does not seem to have forwarded it on to others in her team who seem to have seen it for the first time when the tenant later forwarded it to them.

18. The 28th of October was a public holiday which the tenants said was why they had specifically tried to make sure they could hand over the keys on that day.

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Having had no reply to their email to arrange the handover of the keys, the tenants attempted to hand the keys back to the landlord in the days following.

19. On 30 October the landlord emailed the tenant having failed to connect by phone to ask why they were attempting to return the keys as 28 days’ notice was required to vacate. In response, the tenant sent a copy of their email of 23 October as evidence of their intentions.

20. There is no evidence that the landlord had actioned this email as the required 28 days’ notice on receipt, however, following the email correspondence on 30 October they clearly considered that notice was given on 23 October and sent information about the requirements for ending the tenancy including that the tenants were responsible for the [NAME] and rent to 19 November 2024.

21. The tenant, believing that no notice was required and that they had no obligation to continue to pay rent after the expiry date, then filed this application to have the bond returned in full.

22. Prior to the first scheduled hearing, the landlord filed a cross application and the tenant made it known that they intended to file further claims also. The hearing was adjourned so that all matters could be heard together.

23. The landlord did not physically take possession of the [NAME] until 20 November when the post tenancy inspection was completed.

24. The landlord’s claims for cleaning and gardening relate to issues the landlord accepts were likely caused during the period between the tenants vacating and the landlord’s accepted end date.

25. Therefore, the landlord’s full claim and the tenant’s claim to the full bond hinge on when the tenancy ended.

26. The tenants made it clear on 15 August that they did not wish to renew the tenancy for another year.

27. I consider that the wording of the landlord’s email in response was confusing:

“When you have a firm date that you intend to vacate following expiry, you will need to provide at least 28 days’ notice and we will then action it in our system and notify the [NAME].” (emphasis added)

28. The wording was confusing enough that the tenant felt the need to contact the manager to clarify what was required if they planned to leave on the expiry date.

29. As mentioned above, all of the tenants’ actions, including their rapid application to this Tribunal following receipt of the landlord’s email of 30 October, align with their evidence that they were told by their manager that written notice was not required. They checked this with the manager on 1 October and could have

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given 28 days’ written notice on that date if they had been told it was required. They say they were clearly told that they did not have to do so.

30. The landlord provided no evidence to refute the tenants understanding about what was said except that their company policy is to accept notice in writing only. The person who could have provided evidence to contradict that information, the manager of this [NAME], was not in attendance at the hearing.

31. Therefore, on the balance of probabilities with the evidence available to the Tribunal, I accept that the tenant either had an agreement with the landlord, through their [NAME] manager, to end the tenancy on the expiry date of the fixed term or, that the requirement for written notice had been waived by the landlord.

32. No rent is payable beyond 28 October 2024 (when the tenant tried to return possession/keys to the landlord) and, as rent was paid to 31 October 2024, the landlord owes the tenant three days rent being $270.00.

33. The amount ordered is proved.

Did the tenant comply with their obligations at the end of the tenancy?

34. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit under section 40(1)(e)(ii)-(v) of the Act.

35. The landlord says that the tenant did not leave the premises reasonably clean and tidy in all respects and did not remove all rubbish.

36. The landed provided evidence to show that some minor cleaning and a reasonable amount of garden work was required to bring the [NAME] up to a reasonable standard.

37. The landlord did not consider the tenancy ended until 19 November 2024 and did not inspect the [NAME] until 20 November 2024. The landlord acknowledged that the work required likely arose given the gap between the tenants vacating on 28 October and the inspection date of 20 November.

38. The tenants provided evidence to show that the gardens were reasonably clean and tidy at the vacate date.

39. Given I find that the tenancy ended on 28 October 2024 at the latest, and there is no evidence that the [NAME] was not reasonably clean and tidy on that date, these claims have not been proven on the balance of probabilities.

40. The claims for garden work and cleaning are dismissed.

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Tenants’ claims for compensation.

41. The tenants provided information during the hearing about a number of alleged breaches of section 45 of the Act on behalf of the landlord. The tenants acknowledged that they were not claiming compensation for most of these alleged breaches but provided the information as background and to support their other claims.

42. It is not necessary for me to review allegations which do not form the basis for any claim and limited or no evidence was provided in relation to these matters.

43. In terms of actual compensation claims, the tenant produced invoices to support their claim that they had attended to reasonably substantial garden work early in the tenancy.

44. They provided invoices in the sum of $101.20 and 41.40 for hiring garden tools and a trailer and $29.80 for dumping green waste.

45. The tenants claimed that removal of branches encroaching into the driveway was essential to their taking the tenancy and that the landlord had agreed to attend to this for them. The tenants had vehicles or trailers which had to be parked in this space.

46. There was no evidence provided to support the tenant’s position that their acceptance of the tenancy was reliant on the landlord removing the encroaching branches and the tenant accepted that there were few properties available at this time. There is no mention of the branches or any agreement to remove them in the tenancy agreement, initial inspection report or in any emails between the parties.

47. The tenant said that he mentioned it a number of times and then did the work himself within a couple of weeks of the beginning of the tenancy.

48. The equipment was hired on 4 November 2023 being 8 days from the beginning of the tenancy.

49. I do not consider that this was sufficient time to allow the owner a chance to consider the pruning or the landlord to have quotes completed to get the work done (had the landlord agreed to complete the work). I consider that it is more likely that the tenant determined to complete the work himself and did so as he wanted it completed quickly.

50. The tenant accepted that he did not forward the invoices to the landlord at the time, nor did he ask for compensation at any time.

51. In light of the above, I cannot determine that there was any breach on the part of the landlord or order any compensation for the hiring of the tools or the dumping of the waste.

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52. The tenant also claimed for the cost of spider spray for the garage and attached room, being $69.90.

53. The tenant said that the garage and attached room were not available for inspection prior to the tenancy beginning as they were locked. When keys were provided, the tenants found that both spaces were full of spiders and spiderwebs and needed to be sprayed before they could be used.

54. The tenants said that they asked the landlord to complete this work, but no evidence of this request was provided to the Tribunal. The spray was purchased on 8 November which is less than two weeks from the start of the tenancy so little time was given to allow the landlord to respond if such a request had been made.

55. In light of the lack of evidence in relation to the spiders or of any request being made of the landlord, I cannot find that there is any breach of the landlord’s obligations under section 45 of the Act and therefore no compensation can be ordered.

56. In respect of claims about lack of maintenance of a heat pump, the tenants were claiming compensation for excess power for this period. As the landlord did not have notice of this claim, I allowed the landlord to provide evidence after the hearing to support their position that the heat pump had been serviced when requested.

57. As it turned out, such evidence was unavailable, and the landlord accepted that the heat pump had not been serviced during the tenancy.

58. A pre-tenancy inspection was provided which confirmed that the heat pump was installed in 2022. Although it may be good practise to service a heat pump each year, I cannot find that the lack of a service was sufficient in itself to put the landlord in breach of its obligations under section 45 of the Act.

59. There is no evidence that there was anything wrong with the heat pump and nor was evidence provided to show any loss to the tenant.

60. In these circumstances, no breach is proven, and no compensation is payable.

61. In response to the other allegations made by the tenant during the hearing, the landlord forwarded a number of documents to the Tribunal following the hearing.

62. As there is no claim before the Tribunal in relation to these other allegations this information is not relevant and has had no effect on this decision.

63. For clarity, the tenant has not established any of these compensation claims to the civil law standard of proof, on the balance of probabilities and all claims for compensation by the tenant are dismissed.

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Filing fee

64. As [NAME] and [NAME] have substantially succeeded with their initial claim I have reimbursed the filing fee.

[NAME]

7 February 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 [NAME] 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 [NAME].

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.

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].

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/

Reasons: