What was Tenancy Tribunal case 4475861 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 4475861?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4475861?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4475861?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8642046-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4475861 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 4475861?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4475861?

The primary dispute was 14-day notice. Related themes: Harassment.

Where can I read the official tribunal order for case 4475861?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8642046-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 21 Albert Street, Hamilton East, Hamilton 3216 Tenancy Tribunal Case 4475861 — 14-day notice

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
The tenancy of Tegan Savage and Occupants at Unit/Flat 4, 21 Albert Street, Hamilton East, Hamilton 3216 is terminated, and possession is granted to [The landlord/s], at 12 noon on Monday 20 February 2023.
I grant leave for the possession order to be enforced immediately on the grounds that there is a risk to the security of others or to the property if enforcement is delayed.
Tegan Savage must pay [The landlord/s] $20.44 immediately, being the filing fee on this application.

Reasons

A representative for the landlord attended the hearing on 8 February 2023. The tenant did not attend and could not be reached by telephone. I continued in her absence as the file shows that she was posted and emailed notice of the hearing on 27 January 2023.
The landlord has applied to terminate the tenancy. The reasons given are that the tenant, or other people at the premises with her permission, have engaged in anti-social behaviour at the tenancy address on 3 separate occasions within a 90-day period and that this has caused significant disruption to the reasonable peace and comfort of neighbours.
Section 55A of the Residential Tenancies Act 1986 (RTA) states that antisocial behaviour includes harassment, or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
The tenancy started on 23 September 2022.
Unit 4 at this address is one of eight connected units which share a driveway: four units upstairs and four units downstairs. Unit 4 is the downstairs unit at the end of the shared driveway, furthest from the road.

What does the law say?

Section 55A RTA says that (subject to certain considerations), the Tribunal must terminate a tenancy if it is satisfied that: a. on 3 separate occasions within a 90-day period the tenant, or a person in the premises with the tenant’s permission, engaged in anti-social behaviour in connection with the tenancy; and b. that on each occasion, the landlord gave the tenant written notices that described the date, time and location of the anti-social behaviour clearly, and (if known) who engaged in it, and that the notices stated how many other notices have been given within the same 90-day period and advised that the tenant has a right to make an application to the Tribunal to challenge the notice; and c. that the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
Section 56 RTA says that the Tribunal may terminate a tenancy if it is satisfied that:- a. The tenant has breached their legal obligations, and due to the nature or extent of the breach, it would be inequitable to refuse to terminate, and b. Where the breach is capable of remedy the landlord must first serve a notice on the tenant requiring them to remedy the breach within at least 14 days and establish that the tenant has failed to do so, or c. Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant. A breach is not capable of remedy where the thing done, or its effect, cannot be undone. Must the tenancy be terminated on the grounds of anti-social behaviour? s55A RTA
The landlord has provided in evidence three notices that were emailed to the tenant on the dates 2 December 2022, 6 December 2022 and 9 January 2023, respectively.
The notices allege the following and that this is anti-social behaviour:- a. Notice 1: That visitors to unit 4, or the tenant, were playing excessively loud music and extremely loud talking from 11.00pm until 1.00am on 1 st of December 2022, and people from unit 3 were sitting on the steps directly beside unit 1. b. Notice 2: That visitors to unit 4, or the tenant, were playing excessively loud music and extremely loud talking on the night of 5 December 2022, and comings and goings of people to and from unit 4 making excessive noise with voices and vehicles. c. Notice 3: Damage to the unit and police attendance on 22 November 2022, and further police attendance on 27 November 2022 to recover an alleged stolen vehicle hidden behind unit 4 for which several youths were arrested, and that the tenant became intentionally obstructive and was also arrested. That both incidents disturbed the [neighbours] and also surrounding neighbours.
All notices are numbered, and all advise the tenant that she has the right to apply to the Tribunal to challenge the notices. I am not aware that the tenant has made any application to do so.
I have taken into account the written and oral evidence presented by the landlord, including oral witness evidence given by telephone during the hearing from one neighbour, and two written official information responses from the police. The police have also provided a summary of incidents recorded at unit 4.
I have decided that the landlord has established that anti-social behaviour did occur on or near to the tenancy premises by the tenant or persons at the tenancy address with the tenant’s permission on:- a. 27 November 2022 (“the stolen car event”), and b. Most probably on 5 December 2022 (“the noise event”).
However, there is insufficient clear evidence to establish anti-social behaviour on 2 December 2022. None of the written evidence clearly identifies the tenant or people visiting unit 4 and the witness could not recall this occasion. The landlord has not proven the occurrence on this date.
Also, there are some important flaws with the landlord’s notices. In particular, the third notice (dated incorrectly as 9 December 2022 and served on 9 January 2023) described the stolen car event, which was arguably the most serious event, and yet this actually occurred first, on 27 November 2022.
The purpose of a landlord having to give three clear and consecutive notices is so that a tenant has a fair chance to make sure there is no more anti-social behaviour or to legally challenge the notice, if they disagree with it.
In the case of the third notice, the tenant did not have this opportunity because the event described in the notice actually happened before the first notice was even issued. The third notice is invalid because it relates to an event that happened first.
In summary, the evidence does not prove that all three instances of anti-social behaviour occurred, and the landlord’s third notice is deficient. For these reasons, I decided during the hearing that I could not terminate the tenancy on the grounds of anti-social behaviour (s55A RTA). Should the tenancy be terminated for breach of the tenant’s legal obligations? s56

RTA

After the hearing, I reviewed the file thoroughly. The tenant has been sent a notice of hearing advising her that the Tribunal will consider termination of the tenancy pursuant to section 55A and section 56 RTA. She has been fairly informed. I now consider termination of the tenancy under the latter section.
The purpose of section 56 RTA is that if there has been a serious breach that cannot be remedied, then the Tribunal may terminate the tenancy if the type of breach means it would be inequitable (unfair) not to do so.
A tenant has a legal duty not to cause or permit any interference with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood. See section 40(2)(c) Residential Tenancies Act 1986 (RTA).
I consider that the tenant, or others at unit 4 with her permission, breached the reasonable peace, comfort or privacy of neighbours during the stolen car event on 27 November 2022. I am satisfied that the tenant was directly involved.
The anxiety and disturbance of having police attend at the address, obstructive behaviour by a number of people including the tenant, and multiple arrests, in a neighbourhood where people live in close proximity to each other is serious enough to not be able to be remedied. The landlord was not required to issue a s56 breach notice giving the tenant an opportunity to remedy the breach.
The events that day were also unlawful. The oral evidence satisfies me that the tenant was directly involved in hiding a stolen car and she was arrested for obstructing the police. A tenant must not use or allow premises to be used for an unlawful purpose; see s40(2)(b) RTA.
I am satisfied that the nature of the breach of s40(2)(b) and s40(2)(c) RTA is serious and that it disturbed the neighbours to an extent to mean that it would be inequitable not to terminate the tenancy.
There are other factors that have added to my decision. The landlord presented multiple written complaints, from a number of different neighbours, of disturbance, noise, trespass and damage to neighbouring property over a period from about September 2022 through into January 2023. Many of these say that the neighbours feel fearful and intimidated and refer to occupants and visitors to units 1, 3 and 4. A police report records an incident of wilful damage at unit 4 on 22 November 2022. The evidence also establishes that tenants from at least 3 other units in the block have vacated because of these disturbances.
Tegan Savage is not the only person causing significant disruption at the address however I am satisfied that it is more probable than not, that she and her visitors are some of the people responsible.
The tenant did not come to the hearing, so I have no direct evidence from her about the alleged behaviour over the time.
The tenancy is terminated at 12 noon on Monday 20 February 2023.
I include any and all occupants of unit 4 in the possession order pursuant to section 65 of the RTA.
Usually, a possession order cannot be enforced (an eviction actioned) until 48 hours after the order is made. However, I am able to grant leave for the order to be enforced immediately; see section 138(1) of the District Court Act 2016. Section 106(2) RTA states that s 138(1) applies as if the reference to a District Court Judge, were a reference to a Tenancy Adjudicator.
The landlord may make an immediate application for an eviction warrant so as to have bailiff and/or police assistance to obtain possession, if required.
Because [The landlord/s] has wholly succeeded with the claim it is entitled to suppression of its name and reimbursement of the filing fee.

Tenancy Tribunal case 4475861 — 14-day notice at Unit/Flat 4, 21 Albert Street, Hamilton East, Hamilton 3216

At a glance

Tenancy Tribunal case 4475861 — 14-day notice at Unit/Flat 4, 21 Albert Street, Hamilton East, Hamilton 3216

At a glance

Claims & awards

Order

Reasons

What does the law say?

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What does the law say?

RTA

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions