What was Tenancy Tribunal case 4586930 about?

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

How much money was awarded in case 4586930?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4586930?

The primary dispute was 14-day notice. Related themes: Cleanliness, Unit Titles.

Where can I read the official tribunal order for case 4586930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9217566-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4586930 about?

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

How much money was awarded in case 4586930?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4586930?

The primary dispute was 14-day notice. Related themes: Cleanliness, Unit Titles.

Where can I read the official tribunal order for case 4586930?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9217566-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4586930 — 14-day notice

Order

The Tribunal orders suppression of the Tenant name and identifying details.
The application for termination of the tenancy is dismissed.
No further orders are made but the landlord is granted a period of 60 days from the date of this order within which, if there are further instances of unacceptable disturbance to the neighbours after the date of this order, it can request that the application be brought back before to the Tribunal with this new evidence in respect of such events and the matter may be re-opened.

Reasons

Both parties attended the hearing. The tenant had two support people with her at the hearing, both social workers from [redacted].
The tenant moved from emergency housing into an apartment block. She has a fixed term tenancy. She is grateful to be there, and she admits it is a big change for her, living so close to others. Her tenancy agreement allows her to live there with her baby. She has other family come to stay sometimes and her baby’s father often visits. The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, namely that the tenant has disturbed the reasonable peace, comfort, and privacy of her neighbours. The questions I have to answer are: • Did the landlord follow the proper procedure? • Should this tenancy end?

Did the landlord follow the proper procedure?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable - which means very unfair - to refuse to terminate. See s 56(1) Residential Tenancies Act 1986 (RTA).
The RTA states that tenants shall not “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) RTA.
Where the breach is not capable of remedy, the landlord is not expressly required to serve a 14-day breach notice on the tenant to remedy the breach, although the Tribunal may consider whether a warning should have been given when determining whether it would be inequitable to refuse to terminate.
There are two types of obligation on a tenant: positive covenants and negative covenants. Positive covenants are things the tenant is required to do, such as paying rent. Negative covenants are things that a tenant must not do, such as breaching the reasonable peace, comfort or privacy of neighbours.
Breach of a positive covenant can be remedied by requiring the tenant to do the thing they were supposed to do, such as paying the unpaid rent.
The situation is not as straightforward with breach of a negative covenant, as it may not be possible to undo the thing the tenant did which they should not have done. In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered whether breach of s 48(4)(b) RTA (refusal to allow entry) was capable of remedy: [46] Section 48(4)(b) imposes a negative obligation on the tenant. Several cases have held that breach of a negative covenant in a tenancy agreement is not capable of remedy in terms of s56(1)(b). The breach irremediably arises when the specified failure occurs. [47] It is not always the case, however, that breach of a negative covenant is incapable of remedy. Whether a negative covenant is capable of remedy will depend on the nature of the breach, and when viewed within the context of s56(1)(b)(i), whether the harm that might be caused by the breach can be effectively remedied within a reasonable period of not less than 14 days.
It follows that a breach of a negative covenant would be capable of remedy where the effect of the breach can be remedied. Where however the breach, or the harmful effect of the breach, is serious, it may not be capable of remedy. The same may apply where there has been a persistent series of breaches, for example, where a tenant has repeatedly breached the reasonable peace, comfort or privacy of neighbours.
On 25 February 2023 the landlord served the first of three antisocial notices on the tenant. The notices were given in error because the tenancy is not a periodic tenancy. However, the notice is a record of that first disturbance reported by the body corporate to the landlord, and a record of when the tenant was first warned about loud arguing, possible violence, and door slamming. I note that the notices also mention smoking drugs and having too many people living in the apartment. However, it is the noise which is the subject of this application.
On 6 April 2023 the landlord sent a 14 day notice asking the tenant to stop disturbing the neighbours with “yelling, screaming, swearing, and abusive language”. The police came to the apartment. On 7 April a neighbour emailed the landlord advising that the tenant had been disruptive for the whole week with yelling and banging in the apartment. The neighbour’s name has been redacted, however I will consider the email because it corroborates the 14 day notice.
On 22 May the managing director - I assume of the body corporate - emailed the landlord to advise that the tenant’s behaviour was discussed at the AGM. The email lists the concerns as “continued bad behaviour” “constant screaming and shouting” “not an ideal fit” and “has/had a meth abuse problem”. It seems from the email the managing director had their own tenant move out and was concerned about financial loss and the ability to find a new tenant. It seems likely there are members of the body corporate who also live in the building and were affected by the noise. Even if this is not the case, I find the complaint from the body corporate to be relevant, because the issue was serious enough to discussed at the AGM.
On 23 May the landlord served an anti social notice after the cleaning lady and another person heard yelling and swearing from inside the apartment. The identity of the other person who emailed the landlord has been redacted. This anti social notice was not given correctly, but it was helpful because it meant the tenant knew others in the apartment block were still unhappy with the noise coming from her apartment.
On 6 June 2023 the landlord served another 14 day notice on the tenant. The notice asked the tenant to stop yelling, screaming, swearing, using abusive language and throwing things in the apartment. Someone had called the police. The tenant was given until 20 June 2023 to remedy the breach. The landlord received an email from someone in the building about this same incident. The tenant and I do not know who reported the disturbance because the email has been redacted, and no witnesses came to the hearing. Nonetheless, the tenant did not deny she disturbed the neighbours as described in the notice.
The landlord said there have been no further reports from the residents or the body corporate since the 20 June notice. He submitted it was very difficult to get any neighbours to report noise and antisocial behaviour. However, I am not persuaded by this submission. It seems to me the body corporate has been very forthcoming, sending at least three emails to the landlord and the owner, and at least one neighbour has been emailing the landlord as well.
Following the decision of Huff, it is possible the breach on 6 June was no longer a breach capable of remedy. This is because of the number of breaches brought to the landlord’s attention from February to June. Whether the notice was required or not, the landlord served a 14 day notice on 6 June, and there have been no further reports of noise. Despite the anti-social notices being served incorrectly, there were sufficient 14 day notices for the tenant to be aware of the issue and given a chance to modify her behaviour. I find the landlord has followed the correct procedure.

Should this tenancy end?

As I have said, the Tribunal can end a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate.
In the Huff decision the District Court considered s 56(1)(c) RTA and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy. These are: • The history of the tenancy. • Whether there had been a persistent failure after repeated warnings. • Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. • Whether the breach was inadvertent or deliberately committed. • The conduct of the landlord. • The gravity of the breach. • Whether termination is a proportionate response to the breach.
The history of the tenancy does not look good for the tenant because she has been given repeated warnings, and still the neighbours complain. The tenant does not deny the allegations of noise. She agrees the police have come to her apartment to talk to her twice about her behaviour and noise.
However, I am persuaded the tenant can change her behaviour. The tenant submitted she has been receiving assistance since the start of June. She has been attending a family living without violence course and this has helped her to control her stress levels. She said she has stopped banging doors. She said she has changed family lawyers, and this has also reduced her stress. She has a life coach for support. She was supported by two social workers at the hearing. She said her baby’s father needs hearing aids and he was due to get these the week after the hearing. She said this would mean she did not have to talk loudly to him when he visits. I am persuaded this means she can comply with her obligation not to breach the reasonable peace, comfort and privacy of her neighbours in the future.
It seems most likely to me that some of the breaches in the past have been inadvertent because the tenant did not realise how to live in an apartment building, but also deliberate because she sometimes got to a point where she did not care what the neighbours thought. I am persuaded she now understands how to live in the apartment.
As to the gravity of the breach, it seems to me that yelling and banging and arguing will annoy most neighbours, especially if it carries on day after day. Again, the tenant said all the right things at the hearing about changing her stress levels and therefore her behaviour. I want to note here that the tenant does not have to be silent in the apartment, because she must be allowed to live in there normally, and she does have a baby with her. She is allowed to swear in her apartment. Some noise might be heard in the stair wells, as apartment doors are often not as soundproof as the rest of the apartment. The law only requires her to have regard to the “reasonable peace” of her neighbours.
For these reasons I am not persuaded that termination would be the proportionate response to the breach. The tenancy continues for now.
While the tenancy is not terminated, further proven breaches may result in a different outcome for the tenant. The landlord is granted a period of 60 days within which, if there are further instances of unacceptable disturbance to the neighbours after the date of this order, it can request that the application be brought back before to the Tribunal with this new evidence and the matter may be re-opened. Other orders
No order is made for the filing fee.
The Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. I make orders for suppression of the tenant’s name and details because she has successfully defended the application. See section 95A RTA.
This order has taken longer than I expected, mostly because it was a finely balanced consideration. I am sorry for the delay.

Tenancy Tribunal case 4586930 — 14-day notice

At a glance

Tenancy Tribunal case 4586930 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Did the landlord follow the proper procedure?

Should this tenancy end?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord follow the proper procedure?

Should this tenancy end?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions