What was Tenancy Tribunal case 4613411 about?

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

How much money was awarded in case 4613411?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4613411?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4613411?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9241845-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4613411 about?

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

How much money was awarded in case 4613411?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4613411?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4613411?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9241845-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4613411 — Harassment

Order

The Tribunal orders suppression of the tenant’s name and identifying details.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing.
In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the landlord must establish with evidence that its claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
I do not need to be completely certain, but I need to be more certain than uncertain. In making a decision, I must consider all the evidence presented, including oral testimony. I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all the evidence.
Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
By accepting the evidence of one person over that of another person, I am not saying that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely. Claim
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.
The landlord states that the anti-social behaviour is “banging on walls and playing video games / music excessively loud.”
Subject to certain considerations, the Tribunal must make an order terminating the tenancy if it is satisfied: • 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 • 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; • 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. Evidence
The landlord produced copies of notices dared 16 May 2023, 16 June 2023 and 22 June 2023 which advised the tenant that “You have been intentionally making excessive noise in your unit causing stress to neighbouring tenants.”
The landlord also produced a copy of a log of seven noise complaints made to the local authority for the period from 29 May 2023 to 24 June 2023. Of these, five of the outcomes were “No noise found at time of assessment” and the remaining two were “Complainant did not call back. Complaint resolved”.
The landlord also supplied copies of the numerous texts it had received from the tenant in the neighbouring unit (“the neighbour”) complaining of the tenant disturbing her with noise.
The neighbour gave evidence with the assistance of an interpreter. In summary, her evidence was that the tenant disturbed her enjoyment of her property every night with the sound of shooting from computer games, music and banging on the wall between the two properties. The neighbour has repeatedly complained of this behaviour to her landlord. She explained that it made it very difficult for her to sleep and that she was constantly tired because of the many interruptions to her sleep. She advised that the loud sounds continued throughout the night.
The landlord provided photographic evidence of the proximity of the adjoined units and noted that the tenant’s living room is downstairs and the neighbour’s bedroom is upstairs.
The tenant accepted that he was responsible for the behaviour detailed in the first notice. He denied that he was responsible for any of the behaviour complained of in the second and third notices and had made his objections known to the landlord which the landlord acknowledged.
The tenant advised that after the first notice, he had done his best to keep any noise down in his unit and has only the television on in the evenings. He confirmed that this was not connected to any sound system. He believes that the noise may be coming from other units in the complex. He complained of the neighbour banging on their shared wall and disturbing his peace and quiet. Decision
I have taken into account the evidence presented by the parties as set out above.
In order to determine whether the noise coming from the tenant’s property is anti-social, it must first be established that the noise was excessive. That is because s45(1)(e) refers to a tenant’s ‘reasonable’ peace and comfort. The section does not extend to requiring a landlord to step in where a tenant has unreasonable expectations of peace and comfort. Some people are more sensitive to noise than others. A landlord will not be responsible to control all noise. Apart from noise that exceeds noise control standards, a landlord will be responsible to control deliberate noise by one tenant to annoy another tenant, such as is referred to in Davies v Kāinga Ora-Homes and Communities [2020] NZTT North Shore 4223461.
This raises questions about whether this is a case of excessive noise or very low tolerance for noise or perhaps some of both. The number of complaints does not prove that noise was excessive. It simply proves that the person making the complaint viewed the noise as excessive. The sound of a television in an adjoining unit may be irritating but, unless it is excessively loud, it does not constitute anti-social behaviour. However, what is an acceptable level of noise at 9 pm can become an excessive level at 1 am.
A tenant is not to disturb the reasonable peace of a neighbouring tenant. However, on the evidence before the Tribunal, I am not persuaded that the landlord has established that all of the noise is coming from the tenant’s property. The tenant emphatically denies it in relation to the last two notices. It is possible that noise is coming from other units and that this is disturbing the tenant’s neighbour.
I have sympathy for the tenant’s neighbour in that she believes that the tenant is disturbing her peace and quiet. However, the only evidence before the Tribunal of what is occurring comes from her. The noise control reports could have been corroborating evidence, but they do not show that it was necessary to take any action and so do not support the tenant’s neighbour’s allegations.
In the face of the tenant’s denial and any other supporting evidence, the landlord has not persuaded me on the balance of probabilities that the tenant has made the noise of which his neighbour has complained. In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while the ‘balance of probabilities’ is a constant standard: “It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: “[102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.”
It is a very serious matter for the Tribunal to terminate a tenant’s tenancy and it will not do so unless it has been persuaded by strong evidence before being satisfied to the balance of probabilities standard.
In this case I am not satisfied that the evidence is sufficiently strong to persuade the Tribunal that the tenant is responsible for the noise of which his neighbour complains.
The landlord’s claim is dismissed.
In the hearing, both parties gave evidence of banging on their shared wall, both to complain of noise and in retaliation. This is to stop. If either party has an issue with noise, it is not appropriate to cause a disturbance by banging on the wall. Instead, either party should note the exact details and notify the landlord so that it can take appropriate steps.

Tenancy Tribunal case 4613411 — Harassment

At a glance

Tenancy Tribunal case 4613411 — 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