What was Tenancy Tribunal case 4609849 about?

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

How much money was awarded in case 4609849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4609849?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4609849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199218-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4609849 about?

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

How much money was awarded in case 4609849?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4609849?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4609849?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9199218-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4609849 — 14-day notice

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 is seeking termination of the tenancy on the grounds that: (i)The tenant has caused or permitted substantial damage to occur, section 55(1)(b) of the Residential Tenancies Act 1986 (The “Act”), namely: -Cracked glass panes in ranch slider door, -Cracked window in lounge, -Cracked window in two bedrooms, -Missing glass pane in back door, -Broken internal laundry door. (ii)The tenant has acted contrary to section 40(2)(c) of the Act, caused or permitted others at the property with their permission to interfere with the reasonable peace comfort and privacy of the neighbours, that these breaches are incapable of remedy, and that under section 56(1)(c) of the Act it would be inequitable to refuse to terminate the tenancy. (iii)The tenant has failed to remedy a 14-day breach notice requiring them to cease causing or permitting others at the property with their permission to interfere with the reasonable peace comfort and privacy of the neighbours, section 40(2)(c) of the Act, and under section 56(1)(c) it would be inequitable to refuse to terminate the tenancy.
The onus of proving these claims rests with the landlord. The standard required is on the balance of probabilities. The landlord must produce evidence sufficient to establish more likely than not that the tenant has caused or permitted substantial damage or caused or permitted an interference with the reasonable peace, comfort, and privacy of their neighbours.
At the commencement of the evidence both parties took the promise to tell the truth, understanding that if they failed to do so they may face prosecution. Substantial damage
Under the provisions of the Act a tenant is liable for damage occurring during the tenancy which is more than fair wear and tear.
Section 41(1) of the Act provides that tenants are responsible for damage caused carelessly or intentionally by people at the property with the tenant’s permission.
Under section 41(2), it is presumed that any person at the property with the tenant is permitted to be there, unless the tenant proves they took all reasonable steps to prevent the person from entering or to remove the person from the property.
Section 55(1)(b) of the Act provides that the Tribunal shall make an order terminating the tenancy if satisfied that the tenant has caused, or permitted any other person to cause, or has threatened to cause, substantial damage to the property.
Substantial damage is not defined in the Act. In the case of Morton v Barnhorn, TT189 & 302/97, DC Dunedin, 27 April 1997, the Court considered that substantial should be given its ordinary meaning and referred to the Oxford Shorter Dictionary definition: “of ample or considerable amount, quantity or dimensions”.
Sub section 55(2) of the Act provides the Tribunal with a discretion to refuse to order termination under subsection (1) if it is satisfied that the breach has been remedied (where it is capable of remedy), the landlord has been compensated for any loss arising from the breach, and it is unlikely that the tenant will commit any further breach of a kind to which this section applies.
To prove the claim for termination for substantial damage the landlord must establish: (i)That the damage occurred during the tenancy and was more than fair wear and tear, and (ii)That the damage was caused or permitted by the tenant, and (iii)That the damage was substantial.
If one or more of the elements are not satisfied the claim will fail. Decision
During a visit to the property on 19 May 2023 the landlord discovered damage to the glass panes in the ranch slider, which is the main entrance to the property, and damage in the form of a crack in one of the bedroom windows. The landlord arranged for the ranch slider to be repaired, and a new pane of glass was installed on 26 May 2023.
During a subsequent visit to the property the landlord discovered that the repaired pane had been damaged again, together with a previously undamaged pane. The landlord has produced a photograph of the damage which they submit is consistent with having been caused by an intentional act.
The tenant states that the initial damage to the ranchslider and the window occurred during a domestic dispute with their former partner. Following the repair arranged by the landlord further damage had occurred when the ranchslider, through no fault on their part, had come out of its track. The tenant states that the door is slightly buckled, and not easy to open. Also, that the roller wheel and the track on which it runs are subject to wear and tear. This appears to be supported by the evidence. The tenant states that a piece of broken glass from the previously damaged pane had become lodged in the track causing the ranch slider to come off its track and fall out breaking the glass. The tenant submits that the first repairer may not have used the correct type of glass, suggesting that had they done so the panes may not have been damaged. The tenant has arranged for both panes in the ranch slider to be replaced with toughened glass. This is not disputed.
The invoice for the first repair states that the glass was replaced “like for like.” The landlord is unable to state however whether the original glass pane was toughened glass or not. There are no issues with the ranchslider recorded on the pre tenancy checklist. The ranch slider is however over 30 years old and is showing signs of wear and tear.
There is no expert evidence produced. The onus is on the landlord to establish that the damage was caused during the tenancy and is more than fair wear and tear. Although the damage occurred during the tenancy, I cannot reject the tenant’s explanation as to how the damage occurred. Having considered the evidence it is possible that the damage has been the result of fair wear and tear. The claim concerning the ranch slider is declined.
The landlord has produced eight police incident reports recording call outs to the address, most of which have been prompted by calls made by neighbours reporting domestic disputes at the property between the tenant and a male. The reports have been redacted removing names. The landlord submits that the police reports, and other reports from the neighbours, suggest that the male concerned is a regular visitor to the property with the tenant’s permission.
The tenant has four children. Three, including a child under ten, a toddler and a baby, reside at the property. The tenant states that she is estranged from the father of the two youngest children and has been so since the commencement of the tenancy. The tenant rejects any assertion by the landlord that he had been bailed to the address, stating that to receive a single parent benefit they have had to declare their relationship status to Work and Income.
The landlord has produced photographs showing damage to a glass panel in the back door, which is missing, a cracked window in another bedroom, and an internal laundry door damaged and placed outside. The landlord states that the damage has occurred during the tenancy, is more than fair wear and tear, and has been caused by a male who had been at the property with the tenant’s permission.
The tenant states that the damage to the back door, bedroom window, and internal laundry door were caused during an incident in June 2023 when their former partner arrived at the property uninvited. One of the incident reports covers this incident, although it appears that no charges resulted, the tenant stating that she wanted the former partner charged with wilful damage but was advised that it was a matter for the landlord to pursue.
Following the incident, the former partner was issued with a Police Safety Order (“PSO”), ordering him not to have any contact with the tenant for 10 days, and at the request of the tenant a notice further trespassing him from the property. The tenant has produced a copy of the PSO and a letter from her lawyer stating that a Protection Order and custody orders are being sought.
The primary issue in this case is whether the landlord has established to the required standard that the tenant caused or permitted the damage to occur.
The landlord has given oral evidence of conversations they have had with concerned neighbours, produced two emails, and a text message. However, this evidence lacks important detail such as dates and times. In my view the police reports and the general tenor of the neighbour’s evidence tends to support the tenant’s submissions that the incidents of damage have occurred during unannounced visits by their ex-partner.
I am not satisfied to the required standard that the tenant has caused or permitted the damage to occur.
The landlord has also produced a photograph of a window in the lounge which has a crack in the corner. The tenant denies liability for this damage.
In March 2023 there was a fire at the property. The tenant was not at the property when it occurred. Although the subsequent investigation could not determine fault it appears suspicion has been cast on the male who reported it, a family member of the former partner, who happened to be in the vicinity at the time. The tenant states this male has also visited the property uninvited, are mentioned in the police reports, and had been trespassed from the tenant’s previous address. Although the landlord concedes there is insufficient to find the tenant liable for the fire, they are concerned for the ongoing safety of the property.
While the property was being repaired, it was broken into. The burglars gained entry by forcing the security stay on the lounge window, shown as damaged in the photograph. The security stay concerned had been identified in the pre tenancy inspection as requiring repair and was replaced shortly afterward. The same tradesperson repaired the stay on the second occasion.
The landlord states that the window was undamaged at the time the security stay was repaired. The tenant denies this and states that the window and stay were both damaged during the burglary. The landlord has produced an email from the tradesperson who repaired the window stay which states: “When I originally replaced the handles and security stays the glass was not cracked. When I came back to fix the security stays the second time the glass was cracked.” Unusually, having produced the email in support of their claim, the landlord has now questioned its accuracy claiming that the tradesperson had intended to say that the glass was not cracked.
The tenant’s submission that the window was cracked when the stay was damaged the second time is plausible. I cannot be satisfied to the required standard that the tenant is liable for the damage. Interference with reasonable peace comfort and privacy
The landlord has also applied for termination of the tenancy for breach of the tenant’s obligations 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) of the Act.
Where a 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. See section 56(1) of the Act.
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.
However, unless the breach is serious, the Tribunal usually requires the landlord to have warned the tenant about the consequences of continued breaches before it will exercise its discretion to terminate.
The Court has previously held that breaches involving assaults or drug dealing, may not be considered breaches incapable of remedy, although whether a breach is incapable of remedy will be determined on the facts.
Under section 56(1)(c) of the Act, the Tribunal may refuse to terminate a tenancy if satisfied that it would not be inequitable to do so.
In determining the exercise of the discretion in section 56(1)(c), the District Court in Vincent Dean Huff v City Central Property Management Limited [2020] NZDC 19229, stated at [61]: [61] Factors which are relevant to whether it would be inequitable to refuse to terminate this tenancy include: The history of the tenancy. Whether there has been a persistent failure after repeated warnings. Whether the history of breaches was such that it was 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.
To prove the claim for termination for causing or permitting an interference with the neighbour’s reasonable peace, comfort, and privacy the landlord must establish: (i)There has been an interference with the neighbour’s reasonable peace, comfort, and privacy, and (ii)The tenant has either caused or permitted the interference to occur.
If one or more of the elements are not satisfied the claim will fail. Decision
In my view none of the allegations raised are so serious that they would, if proved, justify termination without notice.
The landlord states that on 18 May 2023 they received a verbal complaint from a nearby neighbour that they had been disturbed by an argument at the property.
On 19 May 2023, the landlord served the tenant a 14-day notice which included: “ensuring that no argument between self and visitors occur which seriously disturbs neighbours”. The landlord states that they had received other complaints before this one, the catalyst for issuing the notice.
The tenant states that the argument was with a male related to her former partner who had arrived at the property unannounced, the same male mentioned above who had been trespassed from the tenant’s previous property. The tenant states that she was the one who asked the neighbour concerned to call the police. The male left before police arrived.
The landlord has produced eight police incident reports recording calls to attend the property dated 14 March 2023, 04 May 2023, 23 May 2023, 12 June 2023, 18 June 2023 (2) and 20 June 2023. The landlord submits these reports are evidence that the tenant has failed to remedy the notice and has continued to cause or permit an interference with the neighbour’s reasonable peace, comfort, and privacy.
The landlord states while they have sympathy for the tenant’s personal circumstances, they have a moral obligation to the neighbours.
As stated, the other evidence from the landlord, emails, and text message, while lacking specific details, suggests that residing in close vicinity to the property has been an unpleasant experience for some neighbours. Concerning the text message, although the author is named, the landlord is unclear how they are a neighbour.
The report dated 14 March 2023 deal with the fire. The report dated 13 May 2023 deals with the burglary. Each of the other incident reports have been discussed in detail.
The primary issue in this claim, as with that for termination for substantial damage, is whether the Tribunal can be satisfied to the required standard that the tenant has caused or permitted the interference. I have reached the conclusion that the incidents giving rise to any interference have involved one or other of the two males who have not been at the property with the tenant’s consent. The claim for termination for interfering with the neighbour’s reasonable peace, comfort, and privacy is dismissed.
Moving forward, the landlord is concerned that the ex-partner, and the other male, will continue to visit the property and cause problems. As the landlord is not the legal occupier, they cannot trespass the males concerned. However, to protect themselves, and indirectly the property, the tenant has exercised their legal rights. The tenant appears to recognise that failing to do so is jeopardising their tenancy. Since the incident of 28 June 2023, when the ex-partner was served with a PSO, and trespassed, there have been no further complaints. This has been confirmed by the landlord. I am also satisfied that the tenant intends to follow through with their application for a Protection Order, which will further protect her, and the property, from the unwanted visits by the two males concerned. Name suppression
The tenant seeks name suppression. The landlord is ambivalent.
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.
The tenant has been wholly successful and is granted name suppression. I add that had the tenant been unsuccessful, considering the allegation of domestic violence the Tribunal would have exercised the discretion in section 95A (4) and ordered suppression of the tenant’s details.

Tenancy Tribunal case 4609849 — 14-day notice

At a glance

Tenancy Tribunal case 4609849 — 14-day notice

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