What was the outcome of Tenancy Tribunal case 4711230?

The tribunal order states: The tenancy of Waitarehu Martin-Kemp at 10B Eton Place, Spotswood, New

How much money was awarded in case 4711230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711230?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4711230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9757467-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4711230?

The tribunal order states: The tenancy of Waitarehu Martin-Kemp at 10B Eton Place, Spotswood, New

How much money was awarded in case 4711230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4711230?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4711230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9757467-Tenancy_Tribunal_Order.pdf.

10B Eton Place, Spotswood, New Plymouth 4310 Tenancy Tribunal Case 4711230 — 14-day notice

Order

The tenancy of Waitarehu Martin-Kemp at 10B Eton Place, Spotswood, New Plymouth 4310 is terminated, and possession is granted to Tania Elizabeth Collins and Gareth Collins, at 11.59pm on Friday 15 December 2023.
Waitarehu Martin-Kemp must pay Tania Elizabeth Collins and Gareth Collins $20.44 immediately, being the filing fee.

Reasons

Only the landlord attended the hearing. I am satisfied that the tenant has been served and so the hearing proceeded in her absence.
The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Should the tenancy be terminated?

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) Residential Tenancies Act 1986 (RTA).
Where the 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.
The landlord says that the tenant has breached their obligations by: a. Exceeding the number of permitted occupants; and b. Breaching a no pet clause; and c. Failing to pick up rubbish and dispose of dog excrement.
The landlord served a 14-day notice on the tenant on 5 September 2023 in relation to there being a dog on the premises and served a separate 14-day notice on the same day in relation to the additional occupant.
The landlord also served a notice on 14 September 2023 in relation to dog excrement and rubbish (this 14 day notice also included other issues but the landlord says the tenant complied with the notice in respect of these).
The landlord says that the tenant did not remedy the above breaches within the required period. Additional occupant
Section 40(3), Residential Tenancies Act 1986 provides that where the tenancy agreement specifies a maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant shall ensure that no more than that number ordinarily reside in the premises at any time during the tenancy.
The landlord says that the tenancy agreement only allows the tenant and her children to live at the property.
The relevant clause in the tenancy agreement states: ‘Tenants are only [name of tenant] and her 2 children [name] and [name]’. While this refers to ‘tenants’ rather than ‘occupants’ I regard this as being sufficiently clear to establish that the tenancy address is only to be occupied by the tenant herself and her two children. This interpretation is supported by the fact that the children are not tenants but occupants.
The landlord says that they are told by numerous neighbours including another tenant of theirs who lives next door to the premises, that a man lives at the property with the tenant. This man is believed to be the father of the children.
The landlord says that the neighbours report problems about him weekly if not daily and they also keep the landlords informed in relation to incidents involving the police attending the property due to his presence. The landlord says that the Police have also unofficially told them that the man lives at the property.
In addition to the information given by the neighbours and the Police the landlord refers to the fact that the man has been involved in various anti-social activities, for which they have issued notices, at the property. The landlord says that the first notice they served (dated 5 September 2023 for an event on 4 September 2023) related to the armed defender’s unit who were called to the property on an occasion when the man was involved in smashing windows and ‘beating someone up’ and there was an imitation firearm. He has been charged but not convicted. The landlord says that the neighbours are terrified.
Other anti-social behaviour notices involving the man have also been served for events occurring at the premises on 10 October 2023, 25 October 2023 and 15 November 2023.
The latest notice refers to the man causing damage to the fence between the tenancy address and the neighbour (also a tenant of the landlord). Photographs provided show extensive damage to the fence.
The landlords say the property was only just built and it was completed in around July 2022. This tenant is the first person to live in the new home. This was supported by photographs.
No application to challenge the anti-social behaviour notices has been made by the tenant to the Tribunal.
The landlord says the frequency of these notices is shows that the man is living at the property. They say that the anti-social behaviour notices do not record all of the incidents they have been told about but only the major ones.
The landlord’s say that the man’s dog is also living at the property. This is referred to further below.
The landlord also referred to the man having a car that he was working on (with no engine) being left on the driveway, causing a large oil stain on the new concrete, and a man’s fluorescent jacket left hanging in the wardrobe of the property on an inspection.
The text of an email from a neighbour (not named) reporting an incident of anti- social behaviour has also been provided which also sets out that the man is living at the property.
On the morning of the hearing the landlord received a text message from a neighbour advising that the man, the children and the dog were observed leaving the property that morning. This text message was presented to the Tribunal.
In the absence of any evidence presented by the tenant, I am satisfied that it is more likely than not that the man was living at the property and that this breach has not been remedied within the required 14 days. No pets
The tenancy agreement says ‘No pets’.
The landlord says the tenant is in breach of this clause because the tenant has a dog living at the property. It is a medium size dog of a ‘Staffy’ breed.
The landlords report that the neighbours have reported the dog living at the property, it is observed on walks and in the car. The landlord also provided photographs of dog excrement taken on different dates in the garden of the premises (both before and after the 14-day notice relating to excrement was issued).
The landlord also says that the dog is interfering with their other tenant’s use of their property because of the dog using her lawn to defecate. The landlord says they have a video of this but they did not have it to show me. However, photographic evidence of several pictures of faeces on the neighbour’s lawn from November 2023 were provided. The landlord says that the neighbour does not have a dog.
The landlord says that they do not have a blanket no pets policy for tenancies. It is considered case by case. They say that it is appropriate to exclude a dog from this tenancy address because it is a new build, the tenant knew that she could not have a dog from the tenancy agreement and also because the section is not large and does not have a lawn. The garden is mulched with new concrete and new tropical plants that were planted in around July 2022. Photographs of the area were provided to support the landlord’s claims. The landlord is concerned about the dog breaking the tropical plants in the mulch.
The landlord also says that the section is not suited for a dog because there is no fence along the back of the section – this is because the section drops away into a bush area leading down to a creek. The dog is not contained and is getting into the neighbour’s property.
The tenant did not attend so there was no evidence or submissions to consider from the tenant.
A number of recent Tribunal decisions consider whether a ‘no pets’ clause is in fact enforceable. By way of example, [2023] NZTT 4639420, 4595629 and [2023] NZTT 4455080. This is because the RTA makes no specific reference to pets. Decisions of other adjudicators are not binding on me but may be persuasive.
Section 40 defines a tenant’s responsibilities. None of them directly restrict a tenant’s right to have a pet. Because the RTA neither specifically prohibits nor permits a tenant to have pets, the issue becomes whether a landlord has contractual freedom to impose a restriction on the tenant. The answer depends on whether the restriction breaches the tenant’s general rights in s 38(1) and (2) RTA.
Section 38(1) provides that the tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. Subsection (2) states that the landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
The commentary on s 38(1) in Westlaw states that the covenant for quiet enjoyment protects the tenant’s right to “peaceful possession and enjoyment of the premises” and that enjoyment means “having the full benefit” of the premises.
Arguably, the ability to have a pet is part of a tenant’s right to have the ‘full benefit’ of occupying the premises.
Unless permitted by s 11(1)(b), section 11 RTA prohibits the parties from contracting out of the RTA.
However, the fact the parties agreed to the ‘no pets’ clause in the tenancy agreement requires additional consideration.
The District Court in Marino v Wellington City Council DC Wellington CIV-2013- 085-660, 23 September 2013 permitted tenants to waive the right to reasonable peace, comfort and privacy by entering into a tenancy agreement knowing that there was construction noise next door.
In Wellington City Council v McMillan DC Wellington MA12-13-14/04, 5 September 2003 the court upheld terms that limit the rights of tenants under s11(1)(b) where the parties are fully informed of and agree to the terms of the tenancy agreement.
These decision indicates that if a tenant knew the tenancy agreement did not allow pets and accepted the tenancy, then a “no pets” clause can be enforceable.
Holland J in Anguetil v North Canterbury Nassella Tussock Board HC Christchurch AP93/89, 30 October 1989 rejected the tenant’s argument that s 11(3) prevented the tenant from agreeing to an increase in rent in a manner contrary to s24(3) of the Act: Is common sense intended to be excluded by the Act? Can a landlord and tenant simply not verbally agree about an increase in rental as is so often the case? I cannot accept that when it enacted this Act the legislature had in contemplation that it would provide licence to a tenant to resile from a consensual contractual obligation and instead shelter behind the technical provisions of the Act. It seems to me that the whole focus of the Act is to protect tenants against the wiles of avaricious and unscrupulous landlords....
Following Anguetil, the Tribunal in Schmid v Murray TT 181/91, 6 June 1991 said: If a landlord and a tenant who, being in possession of all of the relevant facts and capable of exercising their judgement rationally, decide expressly or impliedly to agree to the landlord breaching one of his/her obligations under the Act, I do not consider that the tenant can later assert that in terms of section 11(3) such a waiver is of no effect. Quite apart from that offending common sense and fairness, it is contrary to fundamental contractual principles of estoppel and I do not believe that the legislature intended this legislation to depart from such a basic principle as that. Having given informed consent to the landlord’s breach of the tenant’s right to quiet enjoyment, the tenant could not “shelter behind” s11(3) of the Act.
In Re Rainbow Trustee 2019 [2023] NZTT 4523629 the Tribunal tacitly endorsed a “no pets” clause when it decided not to interfere with the increase in rent because it was the result of the tenants deciding to keep a puppy. The rent was initially set at $700 per week on the basis that no pets be kept; the previous tenant paid rent of $750 which allowed for a pet. The Tribunal considered that the increase was objectively reasonable as the tenants initially accepted the tenancy without them being able to keep a pet. When they decided to get a puppy, the terms of the agreement changed so the Tribunal dismissed the application for a refund of the increased rent paid by the tenant.
In the New South Wales Supreme Court case of Allkins v Consumer Trader and Tenancy Tribunal [2006] NSWSC 1093 the residential site agreement required the tenant to comply with the park rules pursuant to the Residential Parks Act 1998 (NSW). These rules stated: 1. Any and all pets entering Valhalla Village must first be approved by management; 2. If a resident moves into the village without a pet, they cannot obtain a new pet; 3. If a pet dies, it cannot be replaced.
NSW Associate Justice Malpass held that the park rules did not violate the tenant’s right to quiet enjoyment: Clause 52 of the agreement provided that the plaintiff was not to keep or care for any pets, poultry or animals on the site or in their dwelling, except as permitted by the park rules. The clause also incorporates the park rules into the agreement. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s 20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site)
In the light of the above authority, I consider that the no pets’ clause is enforceable.
In any event, even if I am wrong in relation to this, there is the ability of the Tribunal to enforce a “no pets” clause taking into account the particular circumstances of the case pursuant to s 11(1)(b) RTA.
Section 11 of the Act reads: (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
In other words, any agreement that imposes obligations on a tenant that are not contained in the RTA is not enforceable unless the Tribunal is satisfied that the restriction should be permitted. The Tribunal must consider: a. The nature of the tenancy b. The provisions of the tenancy agreement c. The interests of the parties d. All other relevant circumstances.
Ultimately, I find that even if the ‘no pets’ provision is inconsistent with any provision of the RTA in these particular circumstances it should be permitted under s 11(1)(b).
I am satisfied that the restriction in the tenancy agreement should be permitted due to the nature of the property including the circumstances of the section. The unsuitability of the section for the dog is further supported by the fact it is defecating on the neighbours section. The tenant also agreed to the no pets clause at the outset of her tenancy.
I therefore find that the tenant is in breach of the no pets clause in the tenancy agreement by having a dog at the premises and that this was not remedied within the 14-day period. Dog excrement and rubbish
The landlord provided photographs of dog excrement taken on 13 September and on 21 September in varying degrees of age. The landlord says that the excrement that was at the property on 13 September remained on 21 September where there was also additional excrement. Mr Collins said that on occasion he counted 27 piles of excrement.
I find that in not picking up the dog excrement to this extent the tenant breached the tenancy agreement by not keeping it reasonably clean and tidy. I accept that the breach was not remedied within the 14 days.
The landlord says that there is rubbish that has been thrown in the bush area. I heard the landlord’s oral evidence and also was provided with several photographs. The photographs were limited but the rubbish includes a mud flap hanging from a tree, parts of a bumper, a small child’s bike and parts of a highchair. There are also smaller miscellaneous items. The landlord says that no rubbish was removed in the 14 day period save for some nappies that Mr Collins accepts might have been moved.
I find that it is more likely than not that the rubbish is that of the tenant and in not disposing of these items in an appropriate way the tenant has breached the tenancy agreement by not keeping it reasonably clean and tidy. I accept that the breach was not remedied within the 14 days.

Would it be inequitable to refuse to terminate the tenancy?

It would be inequitable to refuse to terminate the tenancy because the tenant has been told that the dog cannot stay at the property but has continued to breach this condition. I find it more likely than not that this breach is ongoing. The dog is interfering with the comfort of the neighbour whose lawn it is defecating on. This occurred recently in November 2023.
The tenant has been told that she cannot exceed the permitted number of occupants. I find it more likely than not that this is ongoing. Further, I accept that the additional occupant is interfering with the comfort of the neighbours – I accept the landlord’s evidence in relation to the police presence on 4 September and in relation to the damage done to the boundary fence.
I accept that the landlord says that they feel unsafe to conduct inspections with the man at the property given the circumstances.
The landlord has gone an additional step of encouraging the tenant to seek support from a tenant’s charitable organisation to help with the situation but the landlord says this was not taken up.
The tenant did not attend the hearing to give any assurance that any of the breaches will be remedied. Conclusion
It would be inequitable to refuse to terminate the tenancy and the tenancy is therefore terminated.
The landlord expressed concern about damage that could be done to the property if the tenant was permitted a longer period in which to leave. In the circumstances I accept this as a valid concern. Possession is therefore granted to the landlords on Friday 15 December 2023 at 11.59pm.

Tenancy Tribunal case 4711230 — 14-day notice at 10B Eton Place, Spotswood, New Plymouth 4310

At a glance

Tenancy Tribunal case 4711230 — 14-day notice at 10B Eton Place, Spotswood, New Plymouth 4310

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Would it be inequitable to refuse to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Would it be inequitable to refuse to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions