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  1. #1
    Join Date
    Nov 2006
    Location
    Cyberspace
    Posts
    5,806

    Default Section 55 claim dismissed. - the whole order copied here:

    An application for a re hearing has been made.

    ORDER
    1. The landlordís application for termination of the tenancy is dismissed.


    2. The tenant must pay the $20.44 filing fee by deduction from the rent in credit in the sum of $37.86 reducing the rent in credit to $17.42


    Reasons:


    1. Both parties attended the hearing. Mr Kiesanowski represented the landlord.


    2. The landlord applies for termination of the tenancy on the ground of rent arrears.


    3. According to the application and the landlordís rent statement, the rent arrears were 21 days rent or more when the application was filed.

    4. The tenant said that she did not necessarily accept the landlordís rent statement and she wanted time to check that it records all the payments that she has made.

    5. In any event, there are no arrears today. The landlord accepts that the rent is in credit in the sum of $37.86.

    6. Given the rent history of this tenancy since it began in January 2017 Ė the rent has been in credit about as much as it has been in arrears Ė and the fact that
    there are no arrears, I was minded to adjourn the application to see whether the tenant can pay her rent as it falls due.

    7. The landlord opposed an adjournment.

    8. The landlord also opposed dismissing the application claiming s55 of the Residential Tenancies Act (the Act) does not allow it.

    9. The landlord argued that under s55(2), the Tribunal could refuse to make an order for termination only where the landlord has been compensated for any loss
    arising from the breach and because the tenant has not so compensated the landlord, the Tribunal must make an order for termination.

    10. The landlord also argued that the Tribunal could not make a conditional order for termination where there are no rent arrears.

    11. I donít accept either of those arguments. I am not making a conditional order and so I need only address the argument that there has been no compensation.

    12. The landlord produced a schedule of time spent in relation to the application and out of pocket expenses which totalled $137.52.

    13. In my view these are not losses arising from the breach in the context of s55. They are costs in connection with the application and they fall to be considered
    under s103 of the Act.

    14. The Act provides for the recovery of costs in certain limited circumstances. That provision cannot be circumvented by calling costs, losses, and trying to recover
    them under s55. They remain costs.

    15. In my view, the provision for compensation is not apt to apply to rent arrears because there is no recoverable loss arising from a failure to pay rent, only an
    obligation to pay the rent.

    16. The rent has been brought up to date and so the breach has been remedied. I believe it is unlikely that there will be any further breach and so I decline to make
    an order for termination.

    17. The application was properly made and so I have ordered the tenant to pay the filing fee from the rent in credit.

  2. #2
    Join Date
    May 2007
    Location
    Hamilton
    Posts
    3,629

    Default

    So you need proof of a loss arising to the landlord from the missed payments?

    Something like a cost of a phone call that you charged the landlord to let them know of the missed payment?
    Or a bank fee if any of the landlords AP's bounced because they didn't get rent.

    Sounds like every property manager should make it a set charge of $1 to the landlord for each missed payment. Then the landlord has a loss!

    Ross
    More Profit from Property? TEACH ME MORE
    Ross Barnett - Coombe Smith Property Accountants
    Proud to give the best property advice for over 13 years.


 

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