Published tribunal order
Tenancy Tribunal case 4642858 — Harassment
Decided 20 Dec 2023 · Published 20 Dec 2023 · Application 4642858
- Harassment
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and tenant’s name and identifying details.
- [The tenant/s] must pay [The landlord/s] the sum of $20.44 immediately, for the filing fee.
- The landlord’s and tenant’s applications are otherwise dismissed.
Reasons
- Both parties attended the hearing yesterday. I will call the tenant [The tenant/s].
- The applications were consolidated and heard together with the landlord’s application for termination of the tenancy of a neighbouring property owned by the same landlord but occupied by a different tenant (application 4694829). The tenant in that application, who I will call [The neighbour], also spoke at the hearing. Background
- The landlord applied for termination of [The tenant/s]’s tenancy on 21 November 2023, relying on a 90-day notice dated 9 August 2023. There was also a claim for rent arrears and compensation for non-compliance with the notice. The 90- day notice terminated the tenancy on the grounds that the property had been sold with vacant possession. There is no doubt that the property has been sold and is going to be redeveloped.
- [The tenant/s] applied for compensation. She said the landlord had failed to take all reasonable steps to ensure that the landlord’s neighbouring tenant ([The neighbour]) did not interfere with her quiet enjoyment. Dispute between neighbours
- The dispute between [The tenant/s] and [The neighbour], who occupied neighbouring properties with the same landlord, revolved around driveway access and parking. [The tenant/s] said she had suffered verbal abuse, threats of violence, trespass, dumping of rubbish on the driveway, blocking of the driveway, and illegal activity.
- The dispute seems to have escalated from a misunderstanding about who was entitled to use the long driveway, or right of way (ROW) from the street to the back house where the tenant lived. [The neighbour] occupied a neighbouring property at the front, adjoining the ROW. According to the tenant, [The neighbour] thought she was entitled to use the ROW and one day asked [The tenant/s] to move her car parked there. This was followed by several incidents of anti-social behaviour and Police involvement.
- [The tenant/s] strongly denied any anti-social behaviour. This was disputed by [The neighbour], who complained about provocative behaviour by the tenant, the installation of security cameras in breach of her privacy, and the dumping of tree waste on her property.
- It is no longer necessary for the Tribunal to make detailed findings about who was responsible for what or when. It is sufficient to say that [The neighbour] did send rude and threatening messages to [The tenant/s] after at least one of the incidents, and the tenant had grounds for the belief that [The neighbour] was not entitled to use the ROW. [The neighbour]’s property had its own separate driveway and parking area.
- The tenant’s submissions identified incidents or disputes between the neighbours on 14 February 2023 (when [The tenant/s] says her driveway was blocked by [The neighbour]) 22 June 2023 (when there was a verbal argument with [The neighbour]; the tenant says [The neighbour]’s family members intervened with verbal abuse and threats of violence) and 31 August 2023 (when the tenant says people arriving at [The neighbour]’s property went up and down the ROW, blaring their lights to try and intimidate her).
- The Police acknowledged a report of harassment on 20 February 2023 and wilful trespass on 28 February 2023. Trespass notices were served by the Police on [The neighbour] following the 14 February 2023 incident.
- The landlord served a notice on [The neighbour] to remedy noise, general disturbance and abusive behaviour on 27 May 2023, although the details of the anti-social behaviour were not further specified. A further notice to remedy breach of quiet enjoyment was served dated 31 August 2023, again without particulars of the impugned conduct. A notice to remedy served on [The neighbour] dated 5 September 2023 referred to an “excessive display of abusive behaviour” and to access to the driveway, without further details. On 25 September 2023, the landlord applied to the Tribunal for termination of [The neighbour]’s tenancy for anti-social behaviour.
- The landlord had an obligation to take all reasonable steps to ensure that none of the landlord’s other tenants caused or permitted any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises (section 45(1)(e) of the Residential Tenancies Act 1986 (the Act)).
- The landlord’s view, expressed in some of the correspondence, was that threats of assault or abuse were a matter for the Police. However, the correspondence does not suggest the landlord relinquished their responsibility under the Act. While the language in the notices to remedy could have been more specific and could have provided further details about the alleged behaviour, [The neighbour] was clearly put on notice that the landlord might take further action. After the issues had continued for some months, the landlord applied for termination of [The neighbour]’s tenancy.
- I am not satisfied that the landlord failed to take all reasonable steps to prevent [The neighbour] from breaching the tenant’s quiet enjoyment. The landlord was also receiving complaints about the tenant from [The neighbour], and it was reasonable for the landlord to investigate, serve notices to remedy, and to try and calm the situation down, before taking steps to involve the Tribunal. It is not obvious to me that the landlord should have acted more quickly or ought to have taken more drastic steps earlier.
- The tenant said the landlord responded to her initial requests for assistance, but then failed to do so when more serious threats of violence were made. However, as already discussed, the landlord did apply to the Tribunal after taking appropriate steps to speak to [The neighbour] and serve notices requiring the anti-social behaviour to stop. Rent arrears and losses
- The tenant says she vacated the property a few days before the hearing. The 90- day notice required possession from 8 November 2021, but this was extended to 21 November 2023. The tenant did not leave by this date either, causing hardship to the new owner, who had purchased both properties and needed to start redevelopment work. The tenant vacated on 11 December 2023.
- The new owner, who I will call [The new owner], attended part of the hearing by telephone. [The new owner] confirmed (as set out in an email dated 3 December 2023, and in a text message sent to the tenant during the hearing) that he had agreed with the tenant to refund the bond out of his own pocket, forgo any rent arrears (the landlord provided a rent summary showing arrears of $3,736.52 to 12 December 2023) or losses, and pay the tenant $500.00 as an incentive for her to leave rapidly. [The new owner] said he made this offer because it was less costly to make the payments than suffer the continuing losses caused by delay to the building project. In my view, the owner likely acted under economic duress, but he has later confirmed he stands by the arrangement with the tenant and described this as a commercial decision.
- The landlord sought to dispute the owner’s ability to waive the claim for rent arrears by reference to their management agreement. In my view the landlord, as the owner’s agent, cannot pursue a claim which the owner has waived. The terms of the management contract between the owner and the landlord as agent are immaterial, so far as the Tribunal is concerned. The agent cannot present a claim for rent arrears that falls outside their actual express authority or is contrary to their principal’s instructions. For these reasons, I decline to award rent arrears, or compensation for any losses (which in any event were not established). Filing fee and suppression
- The landlord had to apply to the Tribunal for a possession order when the tenant did not vacate when lawfully required to do so. I have jurisdiction to award costs notwithstanding the owner’s decision to waive the claim for rent. I award the filing fee to the landlord.
- Both parties have had some success, and both requested suppression. [The neighbour] has been granted suppression in application 4694829. Given that the tenancies have ultimately ended for reasons other than the alleged anti-social behaviour, I have granted suppression to all parties.