What was Tenancy Tribunal case 4622951 about?

The tribunal order states: The Tribunal orders suppression of the Landlord and the Tenant’s name and

How much money was awarded in case 4622951?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4622951?

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

Where can I read the official tribunal order for case 4622951?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9258170-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4622951 about?

The tribunal order states: The Tribunal orders suppression of the Landlord and the Tenant’s name and

How much money was awarded in case 4622951?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4622951?

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

Where can I read the official tribunal order for case 4622951?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9258170-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4622951 — 14-day notice

Order

The Tribunal orders suppression of the Landlord and the Tenant’s name and identifying details.
The application 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. The landlord has served the tenant 3 notices for anti-social behaviour under section 55A of the Residential Tenancies Act 1986 (RTA), as well as serving a 14 day notice to cease for making noise that disturbs the tenant’s neighbours under section 40(2)(c).
The tenancy is for [Tenancy address suppressed]. The unit has four bedrooms, which each bedroom having an ensuite, kitchenette and being separately tenanted. There are shared living, kitchen and laundry facilities. The unit is adjacent to another similar unit. The tenant’s room is upstairs with two other rooms and the fourth room (Room A) is downstairs.

Should the tenancy be terminated under section 55A?

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.
Section 55A 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.
The landlord states in the three notices that the tenant’s anti-social behaviour is: i.On 5 July 2022 at approximately 3.00am there was “loud music breaching peaceful enjoyment of other occupants” ii.On 5 July 2022 from 3pm until approximately 9pm there was “loud music disturbing peaceful enjoyment and smoking inside” iii.On 10 August 2022 at 8.30 there was “smoking inside”.
The landlord confirmed that the complaints which resulted in the above notices were all made by persons who wished to remain anonymous. As a result the landlord was not able to present any evidence from the complainants supporting the alleged anti-social behaviours.
The tenant says he has been mindful of other occupants since he moved in and asks them to tell him if he is too loud. He agrees that he plays music through his television but believes it is not loud. He says he has not had any of the occupants in the unit he is in, or the next unit, complain to him personally that he is making too much noise. The tenant produced a document summarising his view which was signed in agreement by two of the three tenants in his unit and one tenant from the adjacent unit.
I find the notices given to the tenant are not in keeping with the scheme of the anti-social behaviour provisions set out in section 55A as the first two notices were given a day apart for occasions that occurred on the same day. The evidence shows the tenant has opened the email for the second notice before he opened the email containing the first notice. The third notice was then given on the fourth day after the second notice.
My view is that the RTA envisages a gap between the receipt of the notices so that the tenant understands they have been given a warning with the first notice that a change in behaviour is required, a second warning with the second notice which makes it clear it is the last warning, and then when a third notice is given the landlord can apply for termination as the time for warning is at an end. Two or more notices given on the same day, or for behaviours that occurred on the same day, do not provide the opportunity of warning. If taken to the extreme it could mean a landlord could give three notices for anti-social behaviours that occurred on the same day and then the next day apply to the Tribunal for termination.
Therefore due to the circumstances the notices were given as well as the lack of evidence to support the anti-social behaviour alleged I find it would be unfair to terminate the tenancy under the section 55A application. Should the tenancy be terminated for breach of the tenant’s obligation under section 40(2)(c)?
The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) RTA.
Where the breach is capable of being remedied, the landlord needs to give the tenant notice identifying the breach and giving the tenant at least 14 days to remedy the breach; and the breach was not remedied within the notice period.
Where the breach is incapable 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 likely consequences of continued breach before it will exercise its discretion to terminate.
Section 40(2)(c) provides that a tenant shall not cause or permit any interference with the reasonable peace, comfort or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or any other person residing in the neighbourhood.
The landlord issued the tenant with a notice on 23 June 2023 stating that complaints of loud noise and disturbance from the tenant’s room had been received. The notice required the tenant to cease making loud noise that disturbs the neighbours.
The landlord could not provide evidence supporting the complaints it had received as the person/s complaining to the landlord wanted to remain anonymous.
The landlord provided the following in support of the application: a) A list of entries made by the landlord into its client management system: • 29 August 2022 – an anonymous complaint that the smell of marijuana was coming from the tenant’s room; • 6 September 2022 – an email from [Occupant 1], Room A that the house smelled of smoke and that she and another occupant were unhappy living with a smoker; • 7 September 2022 – a separate anonymous complaint that the premises smells of cigarette smoke and cannabis, and there is cigarette butts in the driveway; • 8 September 2022 – a complaint from [Occupant 2] 1 of the smell of cannabis, that the tenant had been smoking in his room and playing loud music until late. The verbal complaint was followed by an email on 11 September which specified incidents on 6, 7 and 9 September; • 22 September 2022 – two anonymous complaints from occupants in the complex about the tenant’s noise, smoking and butts on the driveway; • 12 December 2022 – complaint that the tenant is drinking, swearing and yelling and they are “getting sick of it, do something about it”; • 19 December 2022 – two complaints over the weekend one from an occupant and another person, that there was cannabis smoke “wafting’ from the tenant’s room and he threw food out his window onto the driveway. b) An email from [Occupant 1] (Room A) on 12 November 2022 that the tenant had lit a joint in his room and it can be smelled downstairs; and a letter from her dated 31 July 2023 complaining that the tenant’s loud music until the early hours of the morning has caused the departure of two good tenants and complaints from occupants in the adjoining unit. She said he uses foul language to intimidate other tenants; 1 A previous occupant of a room upstairs, whose tenancy has ended c) A text message on 22 September from an unidentified occupant at the unit of the smell of cannabis from the tenant’s room and cigarette butts being thrown onto the driveway d) 14 day notices to the tenant on: • 6 September, 12 November and 16 November and for smoking inside the property; • 18 November and 21 December for making loud noise and disturbing the neighbours; • Two anti-social behaviour notices under section 55A: The 1 st notice given on 22 September for smoking in the unit, throwing cigarette butts onto the driveway and loud music at night and in the early morning; The 2 nd notice given on 12 November for smoking cannabis inside the property e) The property manager’s personal evidence that he has smelled cigarette smoke in the tenant’s room that he believes was from more than smoke on the tenant’s clothes and likely to be because the tenant had smoked in his room.
The property manager said that he spoke to the tenant in December 2022 about the complaints and that the complaints had “settled down” since then until the complaint made on 23 June 2023.
The tenant, in addition to the comments he made recorded in paragraph 8 above, said that he believed other occupants in the unit did not like him and were complaining as a way of getting rid of him. He commented that he always smokes outside, picks up his and other people’s butts, and takes his ashtray to his room. He said the covered area he and others smoke in is directly under his window therefore the smoke goes into his room. He admits to throwing bread onto the driveway for the birds.
In considering whether the tenant has breached his obligation not to disturb others in the unit or in neighbouring properties I find there is a lack of evidence supporting the application. Unless the Tribunal has evidence directly from the people who saw or heard the behaviour being complained about, it cannot simply act on what the landlord has been told by those complaining but wanting to stay anonymous. When the landlord gives evidence of what they are told (ie as is the case for the anonymous evidence) but not witnessed themselves, it is hearsay. The Tribunal can accept hearsay evidence however it is given much less weight than evidence given by the person who was there. The best evidence is evidence given directly by a person who was there as they can answer questions about what they saw or heard and the Tribunal can make an assessment on the witnesses credibility.
For the tenancy to be terminated under s 56 I must be satisfied that it would be inequitable or unfair to refuse to terminate the tenancy. The landlord has the burden of proving that the tenant’s behaviour has disturbed other occupants of the unit and/or neighbours. I am not persuaded by the evidence that it would be inequitable to refuse to terminate the tenancy.
Here the only evidence supporting the breach that is not anonymous are [Occupant 1]’s email of 6 September 2022 and her letter of 23 June 2023; [Occupant 2]’s verbal complaint of 8 September and his follow up email of 11 September 2022; and the property manager’s evidence of experiencing a strong smell of cigarette smoke in the tenant’s room. All evidence presented after the issue of the 14 Day notice is anonymous.
I also note there were no complaints made to the landlord between 21 December 2022 and 23 June 2023, when the 14 day notice was issued.
Accordingly I dismiss the application. In doing so, I warn the tenant that if the occupants or other neighbours give evidence that is not anonymous in the future or make themselves available to attend a Tribunal hearing to give direct evidence, the result of a future application may be different and result in termination.
After considering the public interest and the application the Tribunal on its own initiative orders suppression of the names and identifying details of both parties and all other occupants referred to in the decision.

Tenancy Tribunal case 4622951 — 14-day notice

At a glance

Tenancy Tribunal case 4622951 — 14-day notice

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated under section 55A?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated under section 55A?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions