What was Tenancy Tribunal case 4750749 about?

The tribunal order states: The application for termination of the tenancy is dismissed.

How much money was awarded in case 4750749?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750749?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4750749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9752803-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4750749 about?

The tribunal order states: The application for termination of the tenancy is dismissed.

How much money was awarded in case 4750749?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4750749?

The primary dispute was Harassment.

Where can I read the official tribunal order for case 4750749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9752803-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4750749 — Harassment

Order

The application for termination of the tenancy is dismissed.

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant, but centring on the same issue, whether the tenancy can be terminated on the grounds of anti-social behaviour of the tenant. The landlord seeks a termination, the tenant disputes one of the three anti-social behaviour notices.
Both parties appeared at the hearing on 8 December 2023.

BACKGROUND

The tenancy commenced on 14 April 2023.
It is plain that things have not gone smoothly at the tenancy with the tenant and her neighbours, and that has resulted in the landlord issuing three notices in relation to anti-social behaviour against the tenant as follows: Notice 1
The notice relates to events on 16 October 2023, at 9:30am, and states: Intimidating loud and abusive language towards neighbour this morning when he went outside to get his dog. This caused reasonable alarm and distress. Notice 2
This notice also relates to behaviour on 16 October 2023, at 4:00pm, and states: Intimidating and aggressive behaviour towards neighbour, including kicking the fence and pulling the fingers resulting in reasonable alarm and distress Notice 3
The third notice relates to behaviour on 20 and 22 November 2023 and states: Cat feces [sic] thrown at and in neighbouring property (the garage) on two separate occasions in the same week, causing reasonable alarm and distress
On 27 November 2023 the landlord applied to terminate the tenancy on the grounds of the anti-social behaviour. On 4 December 2023 the tenant filed a claim with the Tribunal being a dispute in relation to the notices issued. The tenant advised she was disputing the second notice, if not the first two notices.

LANDLORDS CASE

The landlord states that the tenant had a history of conflict at the prior tenancy, and the tenant was granted a tenancy at this new tenancy. The landlord states that issues arose at the prior tenancy with the throwing of animal faeces at neighbours.
The landlord states that on 16 October the neighbour came into the landlords office, and he was visibly upset and shaken, having been verbally abused by the tenant. The neighbour advised there was ongoing issues with animal faeces being thrown .
The landlord issued an anti-social behaviour notice.
The neighbour advised the landlord of later episodes of anti-social behaviour with the tenants son kicking a fence and being abusive.
There was then a period of calm, and then there was a further episode of cat faeces being thrown into the garage.
The landlord advised that anti-social behaviour notices are issued as a tool to try to manage behaviour in order to avoid terminations.
The landlord concluded by noting that there is a duty to neighbours to ensure they are not abused by tenants. When a neighbour makes an allegation, the landlord will weigh up whether to give an anti-social behaviour notice.
Would look for a January date for termination.

TENANTS CASE

The tenant disputes that the reason she moved into the current tenancy was because of anti-social behaviour, or issues with neighbours, but rather it was to allow a larger family to live in the larger house.
The tenant does not dispute that the cat faeces was thrown onto the neighbours property, stating that it was the faeces of the neighbour’s cat, this notice is not contested.
The tenant states that there is a long history of the property manager not believing her.
In relation to the second notice, the tenant states that she arrived home on 16 October when a dog came from nowhere, and lunged at her. The tenant states that the neighbour was struggling to control the dog, and the tenant said the dog needed to be properly controlled. The neighbour stated that she should ‘avoid throwing cat faeces over the fence’. The tenant disputes that she had made the threats as stated, and states she did not verbally abuse the neighbour. The tenant emphasised that she did not offer any abuse to the neighbour. The tenant states that while a complaint had been made to the police, the police have not followed up with her in relation to these allegations.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
Section 55A of the Residential Tenancies Act 1986 (RTA), confirms that a landlord can apply to the Tribunal for an order terminating a periodic tenancy on the ground of anti-social behaviour, when: a. There has been 3 separate occasions of anti-social behaviour in connection with the premises, within 90 days. b. On each occasion the landlord has given the tenant a notice that: i. Describes the specific behaviour; and ii. Advised of the date and approximate location it occurred; and iii. Stating how many notices had been given; and iv. Advising the tenant of a right to challenge the notice in this Tribunal. c. The landlord’s application to terminate the tenancy must be within 28 days of the third notice.
Anti-social behaviour is defined in this section as follows: (7) In this section, anti-social behaviour means— (a) harassment; or (b) any other act or omission (whether intentional or not), if the act or omission reasonably causes alarm, distress, or nuisance that is more than minor.
However the Tribunal cannot make a termination order if in the circumstances of how the behaviour occurred, or the notices were given, it would be unfair to terminate, or if the landlord was issuing the notice in a retaliatory way, because the tenant was asserting some right or ability in relation to the tenancy.
The Act confirms that the Tribunal “must not take into account the impact that terminating the tenancy would have on the tenant”.

ANALYSIS

The question I must consider, is whether the tenancy can be terminated on the grounds of 3 episode of anti-social behaviour, that is an application under section 55A of the RTA.
I have set out a summary of the law that applies with section 55A above, but in short the tenant must engage in (at least) 3 episodes of anti-social behaviour which is likely to cause harassment, or more than minor alarm, distress or nuisance to another person in connection with the tenancy. The landlord must also give three notices which comply with the requirements in the RTA.
As far as the notices are concerned, I accept that they do comply with the process required in the RTA.
However the real question in this case (and what this decision will turn on) is whether the described acts occurred, that is whether there was a factual basis for the notice.
If the events occurred as set out in the three notices, then I would have accepted that those events met the definition of anti-social behaviour as defined in section 55A, and I would have found the tenancy should be terminated.
However, as above the real issue is whether the events as described occurred, particularly the events from which the first and second notices were issued, and for the following reasons I find the landlord has not established that they did, so I must find the notices are invalid.
The onus to establish that the tenancy should be terminated sits with the landlord. It is the landlord who must prove that there is a sufficient basis for the Tribunal to order at termination of the tenancy. In this case landlord has relied on statements provided by the neighbour in issuing the notice, but I have not heard any evidence from the neighbour directly, nor have I received any documentary evidence in relation to the first and second notices such as statements of affidavits from the neighbours.
On the other side of the ledger, I have the tenant who has presented at the hearing, and has given evidence to the extent that the events simply did not happen as described. My impression is that there was a run in with the neighbour, but without hearing evidence from the neighbour, and understanding the circumstances of the interaction, I have no reason why I should not accept the evidence from the tenant, which is in effect uncontested.
In my view, the statutory scheme is that when the landlord issues the tenant an anti-social notice, that the events described in that notice are deemed to have occurred. But the Act confirms that if the tenant wishes to dispute any notice, that the tenant can do so by filing an application with the Tribunal just as the tenant has done. At that point the landlord is on notice that the notice is being challenged, so would need to present evidence to the Tribunal to establish the basis for the notice. In a ‘he said she said’ situation such as this, it would be difficult for the landlord to establish their case, without the neighbour giving evidence, ideally at the hearing in person.
The landlord advised that their interests were in ensuring that the quiet enjoyment of the neighbours was not impeded, and that is appropriate and required by law. No doubt the landlord weighed up the information it had available in deciding to issue the notice. That is as it should be, but once the matter is before the Tribunal, the Tribunal cannot defer to the assessment of the landlord in the matter, the Tribunal must make its own decision on whether there has been anti-social behaviour occur.
After hearing from the parties while I have some reservation in the matter, I must conclude that the landlord has not proven that the abuse as described has occurred, and to that extent must decline the landlords application to terminate the tenancy. For the avoidance of doubt, I am not making a finding that the abuse did not occur, only that the landlord has not proven to the balance of probabilities that it did.

FILING FEE

Because the tenant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenant has applied for name suppression, and as she has been wholly successful, name suppression for the tenant is ordered.

Tenancy Tribunal case 4750749 — Harassment

At a glance

Tenancy Tribunal case 4750749 — Harassment

At a glance

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CASE

TENANTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

LANDLORDS CASE

TENANTS CASE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions