What was Tenancy Tribunal case 4561889 about?

The tribunal order states: The Tribunal orders suppression of the Tenant’s name and identifying details.

How much money was awarded in case 4561889?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4561889?

The primary dispute was Harassment. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4561889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9609083-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4561889 about?

The tribunal order states: The Tribunal orders suppression of the Tenant’s name and identifying details.

How much money was awarded in case 4561889?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4561889?

The primary dispute was Harassment. Related themes: Unit Titles.

Where can I read the official tribunal order for case 4561889?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9609083-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4561889 — Harassment

Order

The Tribunal orders suppression of the Tenant’s name and identifying details.
The application for termination is dismissed.

Reasons

Both parties attended the hearing.
The landlord has applied to the Tribunal for an order terminating the periodic tenancy on the grounds of anti-social behaviour from the tenant or someone on the premises with the tenant’s permission.
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 landlord) 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 are an important part of discharging this burden.
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.
For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.
The landlord and the tenant both spoke at the hearing; in addition, the landlord called Peter Newman as a witness. Mr Newman is the building manager at the apartments.
In this case, the landlord says that the problem relates to a family member of the tenant. This individual is not a tenant and does not live at the premises.
This person has been violent towards the tenant who is therefore a victim of family violence.
The tenant agrees that this person has caused considerable difficulties and she has served a trespass notice on him to try and ensure he does not come to the premises.
It is not disputed that this individual has caused considerable problems for the tenant, her neighbours, and other occupants of the building.
Both the landlord and the building manager said that they have received multiple complaints from other occupants and owners of apartments at the premises. The immediate neighbours have made regular complaints and there have also been complaints from others in the building from time to time.
They both described themselves as being under pressure from management to “do something” regarding this person’s behaviour.
The tenant said that she does not let him inside the building, and he has no swipe card to access it. She says that he must tailgate other people coming into the building.
The landlord agreed that he must be tailgating to get inside the building.
However, once he is in the building he comes up to her apartment and starts banging on her door to let him in and generally causing trouble.
The tenant has called police on him on a number of occasions.
However, the tenant accepts that on occasion when he has been yelling and banging on her door that she has let him inside the apartment. She says that this is because he (and on occasion his friends) are making such a noise that she felt it was easier if they just came inside. However, there have also been physical altercations inside the apartment.
She said that sometimes she feels “not strong enough” to keep him out, however she denies he is there with her permission.
The landlord says that the tenant is “a willing accomplice” because she is “incapable of keeping these people out”. He said that at times there have been others not just this particular individual inside her apartment causing trouble.
The building manager also said that he had called police around 4-5 times, although he said that this was often pointless because police would take such a long time to attend.
Mention was also made of the tenant having a dog at the apartment, although this is not formally part of the application before me, and so I make no findings regarding the dog.
I have no hesitation in finding that his actions, which have included yelling, swearing, causing damage both in the common areas and inside the unit, amount to anti-social behaviour. Indeed, his behaviour likely amounts to criminal conduct.
I also have no hesitation in finding that this person (and others) has caused considerable problems for the landlord and the building manager.
Section 55A of the Residential Tenancies Act 1986 (“the Act”) provides that, subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: 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. on each occasion the landlord gave the tenant written notice— i. describing clearly which specific behaviour was considered to be anti-social and (if known to the landlord) who engaged in it; and ii. advising the tenant of the date, approximate time, and location of the behaviour; and iii. stating how many other notices (if any) the landlord has given the tenant under this paragraph in connection with the same tenancy and the same 90-day period; and iv. advising the tenant of the tenant’s right to make an application to the Tribunal challenging the notice and; c. the landlord’s application to the Tribunal was made within 28 days after the landlord gave the third notice.
The Act confirms that antisocial behaviour includes harassment or any act (whether intentional or not) that reasonably causes alarm, distress or nuisance that is more than minor.
I have taken into account the evidence presented by the parties.
The difficulty in this case is threefold.
First, I am not satisfied that the person engaging in the anti-social behaviour is on the premises with the tenant’s permission. On the contrary, she has served a trespass notice against him. She routinely calls police when he arrives at the premises.
Secondly, there is clearly a family violence dynamic to what is occurring. Although the landlord characterised the tenant as being “complicit” by letting him into the apartment on a few occasions, this suggests a fundamental misunderstanding of the dynamics involved in family violence.
Thirdly, the landlord has failed to follow the clear procedure set out in section 55A of the Act. No notices have been served on the tenant that comply with the section. Rather, the landlord has forwarded various emails and body corporate breach notices.
When I raised this with the landlord at the hearing, he appeared frustrated; as though failure to comply should be viewed by the Tribunal as merely a technicality.
With respect, a landlord who is renting a property is running a business. They are expected to know the law and in relation to termination for anti-social behaviour the Act is prescriptive. It clearly sets out in plain terms what a landlord must do. In this case, the landlord has not done so.
For these reasons, the landlord has failed to establish the basis for termination on the grounds of anti-social behaviour.
The application must therefore be dismissed. Final Remarks and Suppression
I observe that there is a clear public interest issue here. Victims of family violence should not be at risk of losing their home due to the behaviour of those who are victimising them.
I also observe that those residents who have (inadvertently or otherwise) allowed this person to tailgate into the building do not appear to have been held accountable for that. Clearly once the individual concerned is in the building it becomes more difficult to remove him. I strongly encourage the building manager to take steps to minimise the likelihood of non-residents tailgating into the building.
Section 95A(4) of the Act provides that the Tribunal may on its own initiative, having regard to the interests of the parties and to the public interest, order that the name of any identifying particulars of any witness or party not be published.
I consider that in this case, given what has been discussed there is a legitimate privacy interest for the tenant, and there is no legitimate public interest that would require publication of her name. I therefore order suppression of her name and identifying details. J R Smith 05 June 2023

Tenancy Tribunal case 4561889 — Harassment

At a glance

Tenancy Tribunal case 4561889 — Harassment

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions