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Falconer v Panuku Development Auckland Ltd [2018] NZDC 1724

Published 11 December 2018

Appeal Tenancy Tribunal — Subletting — section 44(2A) Residential Tenancies Act 1986 — definition of "tenancy agreement". A tenant appealed a decision of the Tenancy Tribunal which determined that his "tenancy has to a lesser or greater extent morphed into a sub-leasing arrangement" due to the tenant being regularly absent from the flat for work and family commitments. The tenant also had two flatmates, who paid him rent and permanently resided at the residence. The landlord then pursued exemplary damages because subletting, without consent, amounts to an unlawful act, as per s 44(2A) of the Residential Tenancies Act. The two flatmates paid rent to the landlord and the most recent flatmate had paid a bond to the tenant, although it had not been lodged with the Bond Centre because the tenant does not view the flatmate as a tenant. The Judge looked at the definition of "tenancy agreement", as defined in s 2, and s 13 of the Act, and found that every tenancy agreement must be in writing. Also, because "subletting" is not defined, it too must be in writing. The Judge did not regard the tenant's absence from the property for various lengths of time to indicate that subletting had occurred, or that a particular set of circumstances can "morph" into a subletting tenancy. For those reasons, the Judge allowed the tenant's appeal with the effect that the tenancy would continue pursuant to the terms of the tenancy agreement. Judgment Date: 25 January 2018.

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