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Landlords entitled to cancel tenancy of renter on electronically monitored bail

31 May 2024

| Author: Sally Lindsay

Paihia landlords who cancelled a tenancy before it had begun because one of the tenants was on electronically monitored bail have been ordered to refund part of the two weeks’ rent paid upfront.

The Tenancy Tribunal has told Mark and Denise Fincher to pay the tenants $334.72 to cover four days’ rent paid in advance for a self-contained apartment on the ground floor of their Northland house.

But the tribunal said the landlords were entitled to cancel the tenancy because the tenants had not told them one of their number was wearing an “ankle bracelet”. Having a tenant on electronically monitored bail meant the landlords would be required to accept extra obligations that went beyond those of a normal tenancy, the tribunal said.

Before the tenancy began, one of the tenants had accepted a job in Paihia, saw the property advertised for rent, was sent a video and agreed to rent the property. The tenant signed a fixed-term tenancy agreement from 18 August last year to 18 February 2024.

The tenants could not pay the full $1,650 bond so the Finchers agreed to accept an initial $500 and two weeks’ rent in advance, on the understanding the tenancy would not start until 28/29 August.

Leaving the city where they were living on 28 August, the tenants planned to arrive in Paihia the next morning.

However, on the previous afternoon a probation officer arrived at the property, telling the Finchers one of the tenants was on electronically monitored bail. The office wanted to know if there was an internet connection to monitor the ankle bracelet.


Onerous conditions

The Finchers were also told they needed to provide written consent for the tenant to live at the property and give their consent for a police check on them. They were also told that probation officers would regularly check in with the tenant at the property and random checks would be carried out by police at any time of the day or night.

This upset the Finchers, along with the fact that the tenants had not told them about their circumstances. They called the tenants immediately and told them they were cancelling the tenancy. They refunded the bond but not the two weeks’ rent paid in advance.

The tenants filed a tribunal application, wanting repayment of the two weeks’ rent, costs associated with the cancellation of the tenancy – including accommodation, travel and inconvenience – and exemplary damages for termination without grounds.

The tenants had no legal obligation to tell the landlords that one of them was on electronically monitored bail. The landlords could not cancel the tenancy simply because tenant two was on bail.

However, tribunal adjudicator N Blake says because tenant two was on electronically monitored bail, the landlords were required to assume obligations that were substantially beyond a normal tenancy, including having to submit to a police check, having to inform their insurer with possible implications in terms of their insurance cover and having to accept random police visits to the property at any time of the day or night.

Blake accepted the tenants thought they were doing the right thing by waiting until they arrived at the rental before telling the landlords face-to-face about tenant two’s circumstances.

“They went through all the correct steps in terms of communicating with Corrections officers about the relocation. They were disappointed with the way Northland Corrections officers contacted the landlords without telling them about it, including giving the landlords information.”

But determining the dispute according to the general principles of law and the substantial merits and justice of the case, Blake says it would be unjust for the Finchers to accept a tenancy that imposed on them an unforeseeable and unreasonable compromise of their own peace, comfort and privacy and their own commercial risk. “They were entitled to cancel the contract.”

While they refunded the bond promptly, any rent paid by the tenants beyond the date of cancellation had to be repaid by the Finchers, Blake says. This came to four days.

The tenants did not ask for name suppression but the tribunal has discretion to grant name suppression of its own initiative. This decision includes information that is personal to the tenants, over which they have the right to some control. Publication of the tenants’ names may be unfairly detrimental to them, Blake said. “Having regard to the interests of the parties and to the public interest, my finding is that it is appropriate to grant name suppression to the tenants.” ■


[2024] NZTT 4673809

Read the decision here

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