Jointly and severally

[Sharon]

Encountered a situation of interest in Tribunal of recent regarding a joint tenancy of 2 persons. The bond had been released in full on the signature of only one tenant who at the time agreed to sign over the bond. The absent tenant later lodged a claim seeking its recovery.
Adjudicator said the bond center had breached the RTA by only accepting 1 signature on bond form. The ruling did not refer to what section of the RTA was breached and thus far I cant locate.

My understanding of these situations is the parties are jointly liable, eg if someone acts in a way, authorizes a notice or causes damage both the parties are liable? The tenancy agreement included such a clause re Jointly and severally liable along those lines.
Did check out Sec 136(4) regarding notices, not sure if that could be used as a reference for the impending rehearing.
Would appreciate feedback from experienced persons.

[artemis]

Were both tenants on the bond record or only the one who claimed the refund? It's not quite clear from your post.

If both tenants are on the bond record then the Bond Centre has not followed its own process. Don't suppose they would consider themselves liable though.

[Sharon]

both tenants names recorded on bond form, one gave notice to terminate the periodic tenancy, Same one signed bond form on refund claim. Bond Center say they would only require both signatures if a refund is split between tenants to authorize how much each receives. ie their view different from TT

[artemis]

both tenants names recorded on bond form, one gave notice to terminate the periodic tenancy, Same one signed bond form on refund claim. Bond Center say they would only require both signatures if a refund is split between tenants to authorize how much each receives. ie their view different from TT

Interesting, and intuitively wrong surely. Not to mention that their own process says differently. "No funds will be released to tenants unless all named tenants have signed this form." https://www.tenancy.govt.nz/rent-bon...efunding-bond/

If it were me I would be asking the Bond Centre to pay me the amount of half the bond as they did not follow their own published process. If they decline then I would ask the Ombudsman to investigate. Both those actions are free and quick to initiate, and also cut the Tenancy Tribunal out of the case, which is now against the Bond Centre.

[Sharon]

In ideal world everyone would be physically present to sign as stated on the form and in line with bond center process, but this doesn't override Sec 136(4). Key word of sub section 4 being "authorise".
Sometimes in joint tenancies disputes arise between tenants and nothing to do with LL which would be a supporting factor for each tenant to sign but in terms of the Landlord refund only 1 tenant from the joint tenancy is needed to sign. Of course nothing would prevent either tenant from later filing application to TT.
The same would appear to apply in reverse if there were say 2 Landlords, tenants would only require signature of 1 to receive refund.

[Tan]

The bond refund needs to mirror the ingoing bond. If one person wants to sign their part over to the other the form needs to reflect this, or a bond variation with their signature needs to be done prior.
How can a 2 signature bond be released with one? People will loose their faith in the security of bonds.

[Sharon]

An extension of that argument might be " tenant A caused damage, as tenant B im not liable", Hence the term term jointly & severally
Sec 136 (1) (4)
Where any notice or other document is required or authorised by this Act to be given to or served on a landlord or a tenant, it shall be sufficient if it is given or served in any of the following ways:
(4)Where 2 or more persons are landlords or tenants under a residential tenancy agreement, it shall be sufficient compliance with a provision of this Act requiring or authorising a notice or other document to be given to or served upon the landlord or the tenant if the notice or other document is given or served, in accordance with this Act, to or upon any one of the landlords or any one of the tenants.

[Sharon]

wow, interesting chat with Tenancy Services today on this subject. Seems to be a number of new staff that offer very different interpretations of the RTA. Some appear to know the act, others lacking. Bigger concern is when TT dont know their stuff.
Learning curve is always take a copy of the Act to any hearing! Probably goes without saying for the more experienced folk but useful advice for the rest of us.

[Perry]

Nothing new, with that. Happens all the time.
Even having a copy of the RTA in hand at any
TT Kangaroo Kourt Hearing doesn't guarantee
the RTA law will be followed. The Adjudicators
are a law unto themselves.

Manner in which jurisdiction is to be exercised
(2) The Tribunal . . . shall not be bound to give effect to strict legal rights or obligations . . .

You can safely read that as:

The Tribunal . . . shall not be bound to give effect to strict legal rights [of landladies] or obligations [of tenants].

You pay your money and take your chances!

[Sharon]

Yes appears so, does that then defeat any purpose of an appeal to the DC.
Obviously that would require a larger time investment but I get the feeling Adjudicators have already sussed that bit out with with not too many LL keen on a appeals making the system even less accountable.

[Perry]

In my (albeit limited) experience, you could apply for a re-Hearing first.
Whether or not you appeal to the DC depends. After a cursory re-read
of the relevant sections, it appears to me that the grounds for appeal
have been relaxed from what they used to be.

The re-Hearing grounds also seems different. Now, it seems that only
the TT is bound by the reason of: a substantial wrong or miscarriage
of justice has or may have occurred or is likely to occur.

[Sharon]

we had an arrears mediation cancelled today because only one of the occupants fronted. Appears my clause of jointly and severally liable doesnt apply in Mediation. During drill down mediators key response was the other party must be present to qualify agreement regardless of the wordy clause in our TA covering such event. When asked about what part of the RTA we are talking about was told she had 23 years experience covering similar debate. Appears they have their own discretion to do this. Now a 4 week wait for TT. Oh the third reason she gave was that it wasn't fair on those that hadnt bothered to front up.
I struck this a while back but not for quite sometime, anyone had similar?

[Wayne]

Oh the third reason she gave was that it wasn't fair on those that hadnt bothered to front up.

It's even less fair on those who did show up!

[Perry]

And - of course - who gets to define what's "fair?"

[Sharon]

What really rankles is the lack of quality debate and reasoning. If someone has 23 years experience in handling such matters I would expect them to at least be able to comment on aspects of the RTA or why our liability clause (jointly & severally) was considered irrelevant to the argument. Simply stating they have 23 years experience seems a bit hollow.
Likewise what is the point of Mediation if it can be used as delay tactic by simply not turning up, in this case another 4/5 weeks rent free before TT.