What was Tenancy Tribunal case 4438361 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4438361?

Compensation: Breach Quiet Enjoyment: $1,000.00 awarded to tenant; Rent Arrears: $4,340.00 awarded to landlord

What type of tenancy dispute was case 4438361?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4438361?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8888067-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4438361 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4438361?

Compensation: Breach Quiet Enjoyment: $1,000.00 awarded to tenant; Rent Arrears: $4,340.00 awarded to landlord

What type of tenancy dispute was case 4438361?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4438361?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8888067-Tribunal_Order_Redacted.pdf.

Unit/Flat 11, 9 Cracroft Street, Parnell, Auckland 1052 Tenancy Tribunal Case 4438361 — Rent arrears

Claims and awards in Tenancy Tribunal application 4438361 — net $3,340.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,340.00		Rent arrears
Compensation: Breach quiet enjoyment		$1,000.00	Breach quiet enjoyment
Total award	$4,340.00	$1,000.00
Net award	$3,340.00
Total payable by Tenant to Landlord	$3,340.00

Claims and awards in Tenancy Tribunal application 4438361 — net $3,340.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,340.00		Rent arrears
Compensation: Breach quiet enjoyment		$1,000.00	Breach quiet enjoyment
Total award	$4,340.00	$1,000.00
Net award	$3,340.00
Total payable by Tenant to Landlord	$3,340.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The landlord did not take all reasonable steps to ensure that the tenant’s neighbour did not breach her right to quiet enjoyment. The tenant is awarded compensation in the amount of $1000.00 which is to be set off against rent payable.
[The tenant/s] must pay Kāinga Ora–Homes And Communities $3,340.00 immediately, calculated as shown in the table below:
The remainder of the tenant’s claims are dismissed.

Reasons

Both parties attended the hearing. DescriptionLandlordTenant Rent arrears$4,340.00 Compensation: Breach quiet enjoyment $1,000.00 Total award$4,340.00$1,000.00 Net award$3,340.00 Total payable by Tenant to Landlord$3,340.00
The tenant has filed several claims against the landlord. She seeks work orders for new carpet, shower, cupboards and reinstatement of a security camera in the laundry area.
She also seeks an order that her neighbour, [The tenant's neighbour] (also a tenant of the landlord), be removed from the property.
She has also made claims relating to the Healthy Homes Standards, although these appear to be largely related to her neighbour.
She also sought a rent reduction or review of the rental assessment that applies to her.
The landlord has filed a cross-application for rent arrears.
I explained to the tenant at the hearing that I have no jurisdiction to deal with a rent reduction where the situation is not related to market rent. She accepted that and said it had now been remedied in any event. I also explained that I have no jurisdiction to order that another tenant who is not a party to this application be removed from his property.
The tenant also said that she was no longer seeking work orders in relation to the shower which had been remedied.
The tenant further clarified that her stated claims relating to Healthy Homes were in relation to her neighbour. Essentially, she says that his conduct has caused the building to be unhealthy and smelly and his smoking aggravates her asthma.
This claim is not therefore related to the Healthy Homes Standards per se, but are really part of her main overall claim, which relates to her right to quiet enjoyment.
So, in summary the tenant’s claims can be distilled as follows. •Breach of her right to quiet enjoyment, due to conduct of her neighbour •Work orders sought in relation to carpet, cupboards and security camera in laundry area.
Before I consider the claims further, 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 parties to establish their respective claims on “the balance of probabilities”. That means that the parties must establish that what they are claiming is more likely than not.
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.
Both parties submitted substantial documentation with their online applications. There was also a hearing that was reasonably lengthy. The tenant later submitted further video evidence and documents, and the landlord later submitted an updated rent summary and inspection report for the property.
For the sake of brevity, I have not referred to all the evidence presented by the parties; however, they can be assured that it has all been carefully considered. Rent Arrears
The landlord provided rent records which prove the amount owing. That amount is $4,340.00 up to 17 January 2023.
The tenant did not dispute the landlord’s claim and accepts the arrears are owing.
I therefore make an order for that amount to be paid. Breach of Quiet Enjoyment
In essence, the tenant says while that she really likes her property and the community in which she lives, there is one thing that has been causing significant problems and stress for her over several years, and that is the conduct of one of her neighbours, [The tenant's neighbour].
All the tenants in the complex are tenants of Kainga Ora, including [The tenant's neighbour].
The tenant lives on Level 3. The neighbour in question lives on Level 2 of the complex. There are four levels in total. The tenant has lived in the premises since March 2019.
The tenant says that [The tenant's neighbour] is not employed and is there most of the day. She herself had been working for a while but has also been unemployed since October.
In general, she describes his behaviour as follows. •Frequently drunk •Abusive, yelling threats both directed to the tenant and in general •Standing in the stairwell and shouting •Swearing constantly •Leaving his door open constantly •Smoking both tobacco and cannabis which (because his door is always open) means the communal stairwell smells strongly of those substances •On one occasion, breaking into her flat and possibly defecating on the carpet
The tenant says that when she first moved in, she tried to be friendly towards him. However, after an occasion in which she was in his flat (at his invitation) he started swearing abuse at her. She left and has not been inside his flat since.
She describes [The tenant's neighbour] as acting as though he owns the entire building and makes his life difficult not only for her but other tenants. She says that other tenants are too afraid to stand up for themselves and so they won’t complain about him.
The tenant says that she has complained about this conduct to the landlord on multiple occasions, since she first moved in.
She also says she has reported his conduct to police multiple times. Evidence has been filed confirming that police have taken action against [The tenant's neighbour] several times, ranging from formal cautions being given to a charge being laid against him for threats made against her.
She says that this ongoing behaviour is really difficult to live with and has been consistent and persistent. She says that she does sometimes go out and yell back at him and tell him to shut up. She says that because she has complained to the landlord and the police that [The tenant's neighbour] now targets her and complains about her.
She accepts that the landlord has spoken with him on several occasions and asked him to stop this behaviour. She accepts that the landlord has offered for her to move to a new property. However, she says that she declined that offer because she has made connections in the community and does not feel she should have to be the one to move when he is the problem.
The tenant says she struggles with asthma and because [The tenant's neighbour] leaves his flat door open all the time and smokes it means she has difficulty breathing when climbing the stairwell past his flat.
The tenant also described an incident late last year where she believes that [The tenant's neighbour] broke into her flat. She said she arrived home and there was a terrible smell and staining on her carpet, where it had not been before. She says she overheard [The tenant's neighbour] admitting to breaking into the flat “because you told on me”. She says that she thinks he may have defecated on the carpet. She has provided photos of what appear to be brown- ish stains. The tenant cleaned up the mess.
She estimates that she has raised these issue with the landlord more than 20 times since she moved in. Apart from having discussions with him and offering for either him or her to move (both declined), no action has been taken by the landlord.
The landlord says they are aware of the allegations made by the tenant. They accept that she first complained in October 2019. They say that they have spoken to [The tenant's neighbour], who has told them that police have also been called to the tenant’s address to remove her guests.
The landlord says that [The tenant's neighbour] claims that the tenant yells at him for leaving his door open and that she yells abuse at him as well.
The landlord says they have reminded [The tenant's neighbour] about his obligation to be a good neighbour. They say they have offered to move the tenant, and they have also offered to move [The tenant's neighbour]. Both have declined.
The landlord’s position is that given the nature of the complaints, and the lack of corroborating evidence that there is abuse directed specifically at the tenant, they have not followed up on some of the complaints due to lack of evidence.
They say that the tenant’s multiple complaints often lacked specificity regarding times and dates, which have made it hard for them to do anything other than address the complaints with [The tenant's neighbour] “through engagement and conversation”.
The landlord also says that they have not received complaints from the other residents in the complex, many of whom are long term. The landlord says that if [The tenant's neighbour]’s behaviour was all that bad, they would have expected other tenants to raise complaints as well.
The landlord says that following an inspection in September 2022 the tenant has acknowledged that things have “calmed down” somewhat.
The landlord’s position ultimately, is that “while complaints have been made against [The tenant's neighbour], these have not been supported by evidence”.
The landlord invites me to dismiss the tenant’s claim.
As an aside, the landlord says that there are discussions currently taking place with [The tenant's neighbour] about moving, not because of the tenant’s complaints but due to his partner’s health issues which may require more suitable accommodation. It is understood that he is considering this option, but there is no guarantee that he will move or when that might be. Discussion and Findings
Section 38(2) of the Residential Tenancies Act 1986 (“the Act”) provides that a landlord shall not permit any interference with the reasonable peace, comfort and privacy of the tenant in their use of the premises. Under section 45(1)(e) of the Act a landlord must take all reasonable steps to ensure that none of the landlord’s other tenants do the same.
The issues I must determine are: a. Whether the landlord breached section 38(2) of the Act by having permitted interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant; b. Whether the landlord breached section 45(1)(e) of the Act by not taking all reasonable steps to ensure that none of the landlord’s other tenants caused or permitted any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises; and c. If so, what is the appropriate measure of compensation payable to the aggrieved party.
I have reviewed the videos, photos and documents provided by the tenant.
The videos are helpful in that they illustrate [The tenant's neighbour]’s general demeanour however I accept that she has not managed to capture a specific threat being made against her. I accept that the tenant has captured [The tenant's neighbour] yelling on at least two occasions.
I am satisfied having heard the evidence given by the tenant and having viewed the videos that the behaviour in question has included swearing, shouting, and abusive language.
Further, the documents confirm that there have been numerous police reports made. Incident reports confirm action being taken by police on at least three of these occasions.
I also accept the tenant’s evidence that [The tenant's neighbour] has been convicted of threatening behaviour towards her.
I accept the landlord’s evidence that they have made efforts to engage with [The tenant's neighbour] to try and resolve the problem.
I accept that the landlord sought the views of other neighbours regarding [The tenant's neighbour]’s behaviour.
I also accept the landlord’s evidence that on occasions the tenant’s complaints have lacked specificity which made it harder for them to take action.
In the circumstances, I find that the landlord has not in any way caused or permitted interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The landlord has therefore not breached the tenant’s right to quiet enjoyment under section 38(2) of the Act.
However, while I have found that the landlord has not caused or permitted interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant, section 45(1)(e)) requires the landlord to take all reasonable steps to ensure that the landlord’s other tenants such as [The tenant's neighbour] do not do the same.
Ultimately, I accept that landlord’s staff have actively approached and worked with [The tenant's neighbour] and the tenant in order to alleviate the tenant’s concerns, albeit unsuccessfully.
I accept that a number of positive steps have been taken by the landlord to try and alleviate the anti-social behaviour concerned. The material issue before me is whether the landlord has taken all reasonable steps.
I am not persuaded that the landlord has taken all reasonable steps in this case.
Not only has the tenant raised complaints on an ongoing basis since 2019 (which the landlord’s records confirm), there are multiple recorded police incidents of which the landlord is aware. Not only that but [The tenant's neighbour] has been charged and convicted of a criminal offence in relation to his conduct towards the tenant.
While I accept that not every single incident reported by the tenant to the landlord may have justified strong action being taken, it is hard to accept that a criminal conviction (for threatening to kill or do grievous bodily harm), where the standard of proof is “beyond reasonable doubt” can support the landlord’s view that the tenant’s complaints “have not been supported by evidence”.
I appreciate that the landlord has a difficult balancing act given its remit to provide housing for people who are often vulnerable and have complex needs. I also accept that it sees relocation as a last resort given its social housing charter and relevant social housing policies.
However, the landlord’s compliance with and preference for its own policy is not law; it does not excuse the landlord’s breach of section 45(1)(e).
As the learned adjudicator found in Y v Kainga-Ora, 1 the advantage to the landlord of seeking termination through the Tenancy Tribunal is that it shifts the burden to the Tribunal to determine whether there is sufficient evidence of anti- social behaviour to justify termination. The landlord would then have met his or her legal duty to take “reasonable steps” by bringing the matter before the Tribunal and producing all the relevant evidence, irrespective of the outcome. There is also the option of transferring the anti-social neighbouring tenant as an “acceptably effective” alternative.
Here, while the relocation of [The tenant's neighbour] had been “offered” no further steps had been taken. There were also no steps taken by the landlord to apply to the Tribunal to terminate [The tenant's neighbour]’s tenancy.
It is hard not to avoid the impression that because the tenant was also regarded as “difficult”, steps were not taken that might otherwise have been. Whatever those issues are, they are not the subject of any claim before me, and in any 1 See for example, Y v Kainga-Ora [2021] NZTT Whangarei 4294256 event do not relieve the landlord of their obligation to ensure that one tenant does not interfere with the quiet enjoyment of another.
In light of the frequency and consistency of complaints by the tenant, as well as the conviction that resulted as a result of [The tenant's neighbour]’s behaviour, I find that the landlord has not taken all reasonable steps to ensure that [The tenant's neighbour] does not interfere with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
I therefore find that the landlord has breached section 45(1)(e).
Having regard to the above facts and previous Tribunal awards of compensation, and the nature and extent of [The tenant's neighbour]’s anti- social behaviour against the tenant, I award $1,000.00 as compensatory and general damages. Work Orders Failure to Maintain
In relation to work orders, the tenant says that the carpet was smelly and dirty when she first moved in 2019 but she was desperate for somewhere to live so she just accepted it. However, she says that the carpet is not fit to live on.
She also says that the cupboards are old, and paint is constantly chipping off them and falling on the floor. She said the cupboards were repainted but then the same issue arose again.
In relation to the cameras in the communal laundry she says that while there used to be a security camera right outside the door it has since been removed. She says that as a result clothes are getting stolen, and she considers that the landlord has an obligation to reinstate the camera to address these thefts.
The tenant says that these amount to breaches of the landlord’s obligation to maintain the premises and wants work orders made to replace the carpet, replace the cupboards and reinstate the security camera in the laundry area.
In relation to the carpet, while the landlord acknowledged that the carpet was old, they said it had been commercially cleaned in 2019 before the tenant moved in.
In relation to the security camera, the landlord said that there are still security cameras in the building (by the entrance and at the top of the building) however the camera that was situated outside the laundry was removed because it was constantly vandalised. They said it was not practicable to reinstate it because it will continue to be damaged.
The tenant did not have photographic evidence in relation to her specific claims. Following the hearing, the landlord provided a recent inspection report and photographs. Nothing in those photographs tended to support the tenant’s claim.
Moreover, as noted above, it is for the party bringing the claim to establish their case. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
In this case, the tenant has not discharged her burden in relation to her claims that the landlord has failed to maintain the premises.
Those claims are therefore dismissed, and I decline to make any work orders. Final Remarks
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
In this case, the tenant has substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of her name and identifying details.
Finally, I would like to sincerely apologise to both parties for the delay in issuing this decision. J R Smith 25 April 2023

Tenancy Tribunal case 4438361 — Rent arrears at Unit/Flat 11, 9 Cracroft Street, Parnell, Auckland 1052

At a glance

Tenancy Tribunal case 4438361 — Rent arrears at Unit/Flat 11, 9 Cracroft Street, Parnell, Auckland 1052

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