What was Tenancy Tribunal case 4386722 about?

The tribunal order states: Having regard to the interests of the parties and the public interest, the Tribunal

How much money was awarded in case 4386722?

Compensation: $810.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4386722?

The dispute type was not classified.

Where can I read the official tribunal order for case 4386722?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9127401-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4386722 about?

The tribunal order states: Having regard to the interests of the parties and the public interest, the Tribunal

How much money was awarded in case 4386722?

Compensation: $810.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4386722?

The dispute type was not classified.

Where can I read the official tribunal order for case 4386722?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9127401-Tribunal_Order_Redacted.pdf.

Flat 1, 63 Ayton Drive, Totara Vale, Auckland 0629 Tenancy Tribunal Case 4386722 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4386722 — net $830.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$810.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$830.44
Total payable by Landlord to Tenant	$830.44

Claims and awards in Tenancy Tribunal application 4386722 — net $830.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$810.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$830.44
Total payable by Landlord to Tenant	$830.44

Order

Having regard to the interests of the parties and the public interest, the Tribunal orders suppression of the tenant’s name and identifying details.
Kāinga Ora–Homes and Communities (“Kāinga Ora”) must pay [The tenant/s] $830.44 immediately, calculated as shown in the table below. This can be paid by way of rent credit.

Reasons

Both parties attended the hearing.
The tenant seeks compensation from Kāinga Ora for breaches of the Residential Tenancies Act 1986 (“the Act”).
Specifically, the tenant seeks compensation for the landlord’s alleged failure to take all reasonable steps to stop their neighbour from interfering with the tenant’s reasonable peace and comfort in the use of the premises. DescriptionLandlordTenant Compensation $810.00 Filing fee reimbursement $20.44 Total payable by Landlord to Tenant $830.44
The tenant also sought compensation by way of rent reduction for loss of amenity in relation to scaffolding erected that blocked access to her garage for a period of six weeks.
The tenant also sought orders for the landlord to take specific steps to address the behaviour of the neighbour. However, that is not an order the Tribunal can make.
Before considering the claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenant) to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
In this case the tenant submitted substantial amounts of written evidence including an affidavit, summary of the case with photographs and screenshots, and legal submissions that were prepared for her with the assistance of Waitemata Law Centre. The landlord also provided legal submissions in opposition to the claim. There was also a hearing in which both parties were heard, and some audio evidence was played.
Therefore, for the sake of brevity I have not referred to all of the evidence and submissions but provide instead a summary. The parties can be assured however that all evidence and submissions have been carefully considered. Background
The tenant had been a Kāinga Ora tenant at the premises since 21 July 2021.
She moved into the front unit of a two-unit block in Totara Vale on the North Shore.
The premises had a shared driveway and parking for the two units was located behind the second unit. To access her garage and parking space, the tenant had to drive down the shared driveway and past the neighbour’s unit. The neighbour is also a tenant of Kāinga Ora.
The parking spaces were “communal parking” however they are for tenant use only.
Ultimately, the tenancy ended on 22 July 2022 when the tenant accepted a relocation to another Kāinga Ora property. Summary of Tenant’s Position
Things started to go awry reasonably soon after the tenant moved in. The tenant said that the neighbour or her visitors would often park their vehicles in the shared driveway, which blocked her in.
The tenant said that the first few times she simply asked the neighbour to move the cars and she did, but after this happened several more times the tenant contacted her tenancy manager to try and address the issue.
She also said that there was an abandoned vehicle owned by the neighbour or an associate which was obstructing the tenant’s view. She tried asking the neighbour to remove the vehicle, but nothing happened.
The tenant then contacted Auckland Council about the abandoned vehicle, and the Council issued the neighbour with a notice to remove the vehicle.
The tenant said that was when the trouble started. The neighbour asked whether it had been the tenant who advised the Council. When the tenant replied in the affirmative, the tenant says the neighbour let loose with a tirade of insults.
She said that after that, the neighbour became aggressive and abusive towards her at the drop of a hat.
She said this was exacerbated when issues arose regarding the parking spaces. The tenant said that on average at least 3 times per week she had to deal with the neighbour or her friends and family who either parked in a way that obstructed the driveway or parked in her designated spot at the back of the units.
She said that eventually the landlord painted markings to clearly show where cars were to be parked, but this did not improve the situation. The neighbour (or her visitors) would often park in her carpark. They also obstructed access to the garage.
The tenant said that these issues were consistent and persistent. She said that she advised her property manager about the problems.
The tenant reported a specific incident where she said that she came home late one evening to find the driveway blocked by the neighbour. Because she was so tired, she says she just parked her own car behind the neighbour’s car. In the morning, she says the neighbour was aggressive and abusive, telling her to move the car. The tenant says that the neighbour refused to reverse her car so that the tenant could park in the allocated space, instead insisting that the tenant move her car onto the street. The tenant’s son did move the car, and the tenant says that the neighbour then accelerated very fast almost knocking the tenant over. She says she had to jump out of the way to avoid being hit.
The tenant says she reported this to the tenancy manager. She also reported it to police however police advised this was a tenancy issue and they could not assist her.
The tenant also reported the theft of a motorbike and a lawnmower/weed eater to police. She believes that the neighbour or one of their associates is the thief. However, the tenant accepts she has no positive evidence to prove this.
The tenant recounted an incident where she says she was stuck in her garage unable to get out because someone visiting the neighbour had left a dog in a vehicle parked right outside. The dog was barking, and the tenant was frightened that the dog could get out of the vehicle
The tenant also said that there were issues with constant banging on the walls. She said this was more frequent after Christmas 2021. She says that this noise was constant – almost daily at one point during January 2022. She accepted that sometimes the noise was during the daytime but that there were times when this banging was in the early hours of the morning, affecting her ability to sleep.
Again, the tenant said that she has reported all these incidents to her tenancy managers. She also took photos when she could. The tenant accepted that she did not report each and every incident at the time it occurred; she said this was because she was just so overwhelmed. She also said that she simply could not because often there was a wait time of more than 40 minutes just to get through to anyone at Kainga Ora. She said that she did raise the issues whenever she saw or spoke to her tenancy managers.
She said that she was frustrated because whenever she spoke to her tenancy managers (she had two over this period) she felt that all they did was talk to the neighbour. She said not only did things not improve they became worse because the neighbour was resentful about being “dobbed in”.
The tenant said that when she asked the landlord why breach notices were not being served on the neighbour, her tenancy managers said words to the effect of: “we don’t do that anymore, it’s not our practice”
The tenant says that the cumulative effect of all these issues led to significant stress and impacted on her quiet enjoyment of her home. She further says that despite constant efforts to advise the landlord nothing was done beyond the landlord talking to the neighbour.
In relation to the scaffolding, the tenant said that this was erected on 25 May 2022 and prevented her from accessing her garage. She says this was not removed until 6 July 2022. She seeks a rent reduction for the inability to use her garage during this time. Summary of Landlord’s Position
The landlord said that in their system, they only have a record of four main incidents between the tenant and the neighbour, with the first of those made on 18 August 2021 to the customer service centre.
In relation to other matters raised, the landlord said that the tenancy managers have not made notes about other complaints, and that tenancy managers are expected to take notes about every interaction they have with tenants. The landlord says it is confident that the tenancy managers do in fact make those notes.
Therefore, they rely on the absence of such notes to say that the tenant did not complain or report issues as often as she claims.
The landlord pointed out that a considerable part of 2021 (August onwards) Auckland was in a Level 4 or Level 3 lockdown and so face to face contact was not possible.
The landlord says they do not have a policy of not issuing breach notices; however, the landlord also acknowledged that they are not issued lightly, because as a social housing provider the landlord adopts a holistic approach with its tenants.
The landlord says that their housing managers have done everything they reasonably could in the circumstances. They say that efforts have been made to engage with the tenant to try and repair the relationship between her and the neighbour however the tenant has been unwilling to do so.
The landlord says that the tenant has adopted an antagonistic and retaliatory approach with the neighbour, which has exacerbated the problem. They say that the neighbour has been equally affected by her interactions with the tenant.
This is supported to some degree by the audio recording that was played at the hearing. While it is clear that the neighbour is yelling and swearing at the tenant, the tenant too was heard yelling and swearing at the neighbour in return.
In relation to the scaffolding, the landlord agrees that scaffolding was erected on 25 May 2022 in order that healthy homes compliance work could be undertaken on unit 2. They say that the scaffolding was removed on 4 July 2022.
The landlord says that while they accept the scaffolding obstructed the tenant’s garage, she was not using the garage at that point, according to her own timeline. However, the landlord says that they are willing to offer compensation at 1% of the market rate (given that is the value of the garage). They offer $30.30. Findings – Quiet Enjoyment
I accept that some of the incidents mentioned (e.g., thefts) are not matters that are necessarily within the landlord’s purview. These matters can only be dealt with by police.
I also I find that to some extent the tenant has contributed to the breakdown in the relationship between herself and the neighbour.
However, I do not think it is unreasonable for the tenant to refuse to engage with the neighbour after serious incidents such as the neighbour driving her vehicle at the tenant.
On balance, considering all the incidents recounted by the tenant, I find that the neighbour has acted in a manner that has breached the tenant’s quiet enjoyment. It has not been one or two isolated incidents but rather a pattern of ongoing behaviour.
Having made that finding, I turn now to consider the steps taken by the landlord.
While the tenant may not have reported each and every incident at the time it was happening, it is clear that the tenancy managers were well aware of the ongoing nature of the dispute.
In this case, the steps were limited to endeavouring to mediate between the tenant and the neighbour or talking to the neighbour and reminding her of her obligations.
The landlord’s own notes record the tenant consistently requesting the landlord to issue breach notices to the neighbour rather than dealing with the matter in the informal manner they were adopting.
Ultimately, the landlord offered the tenant a new property. The tenant says she accepted this because she had no choice. While I agree that this was a sensible move to avoid the problem, in effect it was the tenant, rather than the offending neighbour, who was “dealt with” by this solution.
I appreciate that these issues were more difficult to manage during lockdown. However, the legal obligation on the landlord remained.
I find that while some steps were taken, not all reasonable steps were taken. This could have (and should have in my view) included issuing breach notices to the neighbour and formally cautioning her regarding the behaviour and the likely consequences if it were to continue.
I therefore find that the landlord has breached section 45(1)(e) of the Act.
The tenant seeks compensation for this breach.
I consider that an award of $750.00 is appropriate. This equates to roughly $15 per week from the time of the first complaint to the landlord. Findings - Scaffolding
In relation to the scaffolding, the tenant has effectively suffered a loss of amenity in not being able to use her garage.
I do not accept the landlord’s submission that loss of amenity can be measured simply by assessing the monetary value of the garage at 1%. Rather, it is the use of the garage that is lost.
I therefore award compensation in the amount of $60.00. This equates to $10 per week for the 6 weeks the tenant was unable to use the garage. Final Remarks
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
I sincerely apologise to all parties for the delay in issuing this decision. J R Smith 28 June 2023

Tenancy Tribunal case 4386722 — Tenancy dispute at Flat 1, 63 Ayton Drive, Totara Vale, Auckland 0629

At a glance

Tenancy Tribunal case 4386722 — Tenancy dispute at Flat 1, 63 Ayton Drive, Totara Vale, Auckland 0629

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions