What was Tenancy Tribunal case 4748574 about?

The tribunal order states: The application for termination under sections 55(1)(c) and section 41(1) of the

How much money was awarded in case 4748574?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4748574?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4748574?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770982-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4748574 about?

The tribunal order states: The application for termination under sections 55(1)(c) and section 41(1) of the

How much money was awarded in case 4748574?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4748574?

The primary dispute was 14-day notice.

Where can I read the official tribunal order for case 4748574?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770982-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4748574 — 14-day notice

Order

The application for termination under sections 55(1)(c) and section 41(1) of the Residential Tenancies Act 1986 are dismissed.
The applicant has withdrawn the claim for an order to be made under section 78(1)(g) of the Residential Tenancies Act 1986.

Reasons

The landlord has applied for termination of the tenancy on the grounds that the tenant breached sections 55(1)(c) and section 41(1) of the Residential Tenancies Act 1986 (RTA). Did the tenant breach Section 55(1)(c) of the RTA?
Section 55(1)(c) RTA provides that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied: ‘that the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any neighbour of the premises.’
The landlord’s application to the Tribunal has been made because a person known to the tenant, but not a tenant at the property, (hereafter AS) came to the premises and while at the property, assaulted a neighbour. The landlord is not claiming that the tenant assaulted or threaten to assault the neighbour. The landlord is claiming that the tenant caused or permitted AS to assault the neighbour.
Did the tenant cause or permit AS to assault the neighbour? The tenant denies that she caused or permitted the assault. Her submission is that she was not at the property at the time of the assault on 15 November 2023. She said that when she returned home she “walked into the drama AS had caused while she wasn’t there”. A finding about whether the tenant caused or permitted the event must be based on evidence. The evidence necessary to prove this claim could be for example, texts or emails sent to AS encouraging the assault. The evidence could be from a witness who heard a conversation in which the tenant encouraged AS to assault this neighbour. The landlord has not proved this type of evidence. There is insufficient evidence to prove that the tenant caused or permitted AS to assault, or to threaten to assault, the neighbour.
Therefore, the application for termination on the grounds of a breach of 55(1)(c) must be dismissed. Did the tenant breach sections 40 & 41(1) of the RTA?
Section 40(2)(c) RTA requires 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 with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.’
The landlord has claimed that the tenant is responsible for the assault under section 41(1) which states that: ‘The tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.’
The landlord has concluded that the tenant is responsible for AS’s conduct and the assault was a breach not capable of remedy. The landlord’s request is that the assault by AS should result in termination of the tenancy under s.56(1)(c): ‘that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.’
The application for termination based on these grounds must be dismissed for several reasons. The first is that there is considerable doubt that AS was permitted to be on the premises on 15 November 2023 when AS assaulted the neighbour. AS has also assaulted the tenant. Until 1 October 2023 AS had been permitted to be on the premises. However, on 1 October AS assaulted the tenant and charges were laid against AS. The charges the NZ Police brought against AS were: ‘Impedes Breathing/Blood Circulation [Strangulation/Suffocation] [s.189A[b]]. The email from the NZ Police confirms this.
The tenant claims that following this assault AS breached bail multiple times, going to the tenant’s premises. She said that she called the police for his arrest each time. The tenant provided evidence of a temporary protection order she received regarding AS and a court judgement on 5 December regarding the charges mentioned above.
The tenant is not responsible for AS’s conduct under s41 RTA if she did not permit AS to be at the premises. On balance of probability, I am satisfied that after police laid charges of strangulation against AS on 2 October, the tenant did not permit AS to be at the property on 15 November when the assault happened.
The second reason that this application fails under sections 40 and 41 is that the landlord has not served the tenant with a 14 day breach notice. The landlord submitted that the assault was a breach not capable of remedy and a 14 day notice was therefore not necessary for termination.
The assault was a serious matter. However, if the tenant permitted AS to be at the property at the time of the assault her breach was not the assault. The tenant’s breach is permitting someone to be at the premises who caused the assault. This is a breach capable of remedy. If the tenant permitted AS to be at the property and AS then assaulted the neighbour, the breach by the tenant under ss.40 & 41 would require her to take steps to make sure that it didn’t happen again. 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. The landlord has not issued a 14 day notice under s.56 RTA. It is when the tenant fails to take action to prevent a further assault that 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. Summary
The landlord has not proved that the tenant caused or permitted the assault or permitted AS to be at the property at the time of the assault. The landlord did not issue a 14 day notice to the tenant. I the landlord had issued a 14 day notice there are not grounds for termination because there has been no further incident where AS has assaulted a neighbour at the property. For these reasons the landlord’s claim must be dismissed. Misrepresentation
The landlord has withdrawn the application for termination based on the tenant misrepresenting that she had criminal convictions. Name Suppression
Because the tenant has substantially succeeded with the claim, name suppression for the tenant is granted. (see Section 95A(1) of the Residential Tenancies Act 1986).

Order

The application for termination under sections 55(1)(c) and section 41(1) of the Residential Tenancies Act 1986 are dismissed.
The applicant has withdrawn the claim for an order to be made under section 78(1)(g) of the Residential Tenancies Act 1986.

Reasons

The landlord has applied for termination of the tenancy on the grounds that the tenant breached sections 55(1)(c) and section 41(1) of the Residential Tenancies Act 1986 (RTA). Did the tenant breach Section 55(1)(c) of the RTA?
Section 55(1)(c) RTA provides that the Tribunal shall make an order terminating the tenancy if the Tribunal is satisfied: ‘that the tenant has assaulted, or has threatened to assault, or has caused or permitted any person to assault, or to threaten to assault, any neighbour of the premises.’
The landlord’s application to the Tribunal has been made because a person known to the tenant, but not a tenant at the property, (hereafter AS) came to the premises and while at the property, assaulted a neighbour. The landlord is not claiming that the tenant assaulted or threaten to assault the neighbour. The landlord is claiming that the tenant caused or permitted AS to assault the neighbour.
Did the tenant cause or permit AS to assault the neighbour? The tenant denies that she caused or permitted the assault. Her submission is that she was not at the property at the time of the assault on 15 November 2023. She said that when she returned home she “walked into the drama AS had caused while she wasn’t there”. A finding about whether the tenant caused or permitted the event must be based on evidence. The evidence necessary to prove this claim could be for example, texts or emails sent to AS encouraging the assault. The evidence could be from a witness who heard a conversation in which the tenant encouraged AS to assault this neighbour. The landlord has not proved this type of evidence. There is insufficient evidence to prove that the tenant caused or permitted AS to assault, or to threaten to assault, the neighbour.
Therefore, the application for termination on the grounds of a breach of 55(1)(c) must be dismissed. Did the tenant breach sections 40 & 41(1) of the RTA?
Section 40(2)(c) RTA requires 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 with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.’
The landlord has claimed that the tenant is responsible for the assault under section 41(1) which states that: ‘The tenant shall be responsible for anything done or omitted to be done by any person (other than the landlord or any person acting on the landlord’s behalf or with the landlord’s authority) who is in the premises with the tenant’s permission if the act or omission would have constituted a breach of the tenancy agreement had it been the act or omission of the tenant.’
The landlord has concluded that the tenant is responsible for AS’s conduct and the assault was a breach not capable of remedy. The landlord’s request is that the assault by AS should result in termination of the tenancy under s.56(1)(c): ‘that the breach is of such a nature or of such an extent that it would be inequitable to refuse to make an order terminating the tenancy.’
The application for termination based on these grounds must be dismissed for several reasons. The first is that there is considerable doubt that AS was permitted to be on the premises on 15 November 2023 when AS assaulted the neighbour. AS has also assaulted the tenant. Until 1 October 2023 AS had been permitted to be on the premises. However, on 1 October AS assaulted the tenant and charges were laid against AS. The charges the NZ Police brought against AS were: ‘Impedes Breathing/Blood Circulation [Strangulation/Suffocation] [s.189A[b]]. The email from the NZ Police confirms this.
The tenant claims that following this assault AS breached bail multiple times, going to the tenant’s premises. She said that she called the police for his arrest each time. The tenant provided evidence of a temporary protection order she received regarding AS and a court judgement on 5 December regarding the charges mentioned above.
The tenant is not responsible for AS’s conduct under s41 RTA if she did not permit AS to be at the premises. On balance of probability, I am satisfied that after police laid charges of strangulation against AS on 2 October, the tenant did not permit AS to be at the property on 15 November when the assault happened.
The second reason that this application fails under sections 40 and 41 is that the landlord has not served the tenant with a 14 day breach notice. The landlord submitted that the assault was a breach not capable of remedy and a 14 day notice was therefore not necessary for termination.
The assault was a serious matter. However, if the tenant permitted AS to be at the property at the time of the assault her breach was not the assault. The tenant’s breach is permitting someone to be at the premises who caused the assault. This is a breach capable of remedy. If the tenant permitted AS to be at the property and AS then assaulted the neighbour, the breach by the tenant under ss.40 & 41 would require her to take steps to make sure that it didn’t happen again. 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. The landlord has not issued a 14 day notice under s.56 RTA. It is when the tenant fails to take action to prevent a further assault that 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. Summary
The landlord has not proved that the tenant caused or permitted the assault or permitted AS to be at the property at the time of the assault. The landlord did not issue a 14 day notice to the tenant. I the landlord had issued a 14 day notice there are not grounds for termination because there has been no further incident where AS has assaulted a neighbour at the property. For these reasons the landlord’s claim must be dismissed. Misrepresentation
The landlord has withdrawn the application for termination based on the tenant misrepresenting that she had criminal convictions. Name Suppression
Because the tenant has substantially succeeded with the claim, name suppression for the tenant is granted. (see Section 95A(1) of the Residential Tenancies Act 1986).

Tenancy Tribunal case 4748574 — 14-day notice

At a glance

Tenancy Tribunal case 4748574 — 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