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An application for a re hearing has been made.
ORDER
1. The landlord’s 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 landlord’s 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 landlord’s 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 – the rent has been in credit about as much as it has been in arrears – 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 don’t 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.
ORDER
1. The landlord’s 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 landlord’s 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 landlord’s 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 – the rent has been in credit about as much as it has been in arrears – 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 don’t 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.
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