A woman who had just moved out of her home to live in Australia claimed she was assaulted during a domestic violence incident and wanted to move back in only weeks after new tenants took up residence.

The Nelson woman moved to Australia in March. In May, she rented out her home, entering into a 12-month fixed-term tenancy agreement with the new tenants.

However, within two weeks she reported she was assaulted in the context of a domestic violence incident.

She said she no longer felt safe and could not continue her employment because she was suffering Post Traumatic Stress Disorder (PTSD) symptoms from the assault and decided she had to return to New Zealand to heal from the incident.

The woman said her PTSD was exacerbated by her having autism and, in order to heal properly, she required the “familiar and safe” environment of her own home, which she had renovated to limit sensory stimulation and meet her special needs.

What followed was a dispute with her tenants.

Now, the Tenancy Tribunal has said the tenants can stay but has dismissed their claims of harassment and breach of quiet enjoyment.

Tenants told to meet for ‘sensitive discussion’

According to a recently released decision, the tenants, having just moved into the home, were advised by the property manager in May that they needed to meet for a “sensitive discussion”.

At the meeting, the property manager told them the landlord wished to return to her home and break the tenancy agreement.

The tenants didn’t agree to break the agreement.

On June 1 the woman visited the property by arrangement to collect some of her possessions stored in a garage on the property.

Two weeks later the property manager emailed a letter from the landlord setting out the reasons for her request to break the fixed-term tenancy and offering the tenant compensation.

The offer was declined.

On July 2 the property manager requested the tenants’ consent to the woman visiting the property two days later to retrieve further items from the garage, but the visit did not take place.

‘I am losing weight and struggling to sleep’

The woman claimed she would suffer severe hardship, which exceeded the hardship the tenant would suffer if the term was reduced and provided letters from a sexual abuse support service and an autism coach in support of her submission.

“There is only one place that I call home and that feels safe and familiar. It is my sanctuary, and I am desperate to move back in so that I can start to move forward with my life,” she told the tribunal.

“I work mainly from home; my work is very stressful and emotionally demanding and therefore I rely on the serenity of my home to enable me to carry out my role.

“I feel desperate about my situation, and it is causing me a lot of distress on a daily basis. I feel unable to settle back in as I feel my life is in limbo; I haven’t re-engaged with many of my support people as this situation is really negatively affecting my mental, physical and emotional state, I am losing weight and struggling to sleep.”

Stress of finding a new rental ‘significant’

The tenants said they had been renting a property for six years and spent several months searching before finding a suitable property for themselves and their young daughter.

They were very distressed to find the landlord wanted to end their tenancy after only a matter of two weeks, which had caused them significant stress.

One of them said it had impacted her work, sleep, social activities and day-to-day routines and that she had been prescribed sleeping tablets and referred to a psychologist.

From their recent experience, the stress and financial cost of finding a new rental was significant, and, while they appreciated the landlord’s predicament, they were not willing to subject themselves and their young daughter to the stresses and inconvenience of trying to find another property when they had agreed to a fixed-term tenancy to provide them with security.

The property manager had offered the landlord a rental property, saying there was a reasonable pool of properties available to rent, but that it had diminished in recent months.

The property manager had offered the landlord a rental property, saying there was a reasonable pool of properties available to rent, but that it had diminished in recent months.

Both applications dismissed

Tribunal adjudicator Geoffrey Baker said it was a difficult decision for the tribunal.

“While having sympathy for the landlord in her difficult and stressful predicament, the tribunal also has sympathy for the tenant who had contracted to rent the property for a year but who has been asked to give up their home and suffer the significant stress and disruption of moving after only some three months.”

Because the landlord had not therefore proven on the balance of probabilities that the severe hardship which they would suffer would be greater than the hardship which the tenant would suffer if the term were reduced, the landlord’s claim was dismissed.

Meanwhile, the tenants claimed that the landlord breached their quiet enjoyment by having mail still going to the property and the ongoing conversations about breaking the tenancy early and visits for the collection of her possessions.

Baker said there was no evidence or suggestion that the landlord was intending to harass the tenants.

“The evidence is that the landlord found herself in a very distressing situation and has tried to negotiate an acceptable solution with the tenant through the property manager.”

The tribunal ordered suppression of the parties’ names and identifying details while both the landlord’s and tenants’ applications were dismissed.

Advocacy group says decision was ‘fair’

New Zealand Property Investors Federation advocacy manager Matt Ball said the circumstances were unusual, and it was hard not to have sympathy for both the landlord and tenants.

New Zealand Property Investors Federation advocacy manager Matt Ball said it was an "interesting and sad case". Photo / NZME

“Fixed-term tenancies are there to provide certainty and security to both landlord and tenant and, as the Tenancy Tribunal notes, they are not set aside lightly.

“In this case, the tribunal has considered the hardship on both sides to be severe and so has not set aside the fixed-term tenancy.

“This seems fair.”

He said the lesson for landlords was that fixed-term tenancies are what they say they are - fixed term.

“If you are renting out a property (where) there is even the slightest chance you might have to move back into, for example, if it’s your former home, then think very carefully about entering into a fixed-term tenancy.

“A periodic tenancy might be a better fit.”

Al Williams is an Open Justice reporter for the New Zealand Herald, based in Christchurch. He has worked in daily and community titles in New Zealand and overseas for the last 16 years. Most recently he was editor of the Hauraki-Coromandel Post, based in Whangamatā. He was previously deputy editor of the Cook Islands News.