What was Tenancy Tribunal case 4756450 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4756450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4756450?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4756450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10190924-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4756450 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4756450?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4756450?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages.

Where can I read the official tribunal order for case 4756450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10190924-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4756450 — 14-day notice

Order

The application is dismissed.

Reasons

[The landlord’s representative] appeared for the landlord, a social housing provider for those with mental health and addiction issues. The tenant appeared and was supported by their Housing Case Worker, [Support person 1], who is an employee of the landlord whose role is to support the tenant maintain their tenancy. Tenant’s upon entering in an agreement with the landlord, authorise disclosure of person information gathered to and from external agencies. The Housing Case Worker will liaise with these external agencies to assist tenants maintain their tenancy.
The property is a two-bedroom unit with a bathroom, toilet, kitchen, dining / lounge, and garage. The tenancy commenced on 26 June 2018. On 04 December 2023, the landlord filed an application seeking termination of the tenancy under section 56(1) of the Residential Tenancies Act 1986 (The “Act”), alleging that the tenant had failed to remedy 14-day breach notices to maintain the property in a reasonable state of cleanliness and remove other occupants.
On 26 January 2024, the matter was listed for a 45 minute in person hearing on 12 February 2024. On that date, it was discovered that the tenant had a disability relevant to the hearings conduct, further the time allocated was insufficient to deal with all claims and evidence.
Following the adjournment, the Tribunal attempted to arrange for a communication assistant. Regrettably, this is not a resource currently available to this Tribunal. However, a hearing loop has been utilised, and as stated, the tenant has been supported by [Support person 1], whose assistance the Tribunal wishes to acknowledge. I am satisfied that there has been a fair hearing. Failing to maintain the property in a reasonable state of cleanliness.
The landlord has produced inspection reports, including photographs, for 10 July 2023, 08 August 2023, 21 September 2023, 09 November 2023, 12 December 2023, 05 January 2024, and 26 January 2024.
Following these inspections on 29 August 2023, 05 October 2023, 27 October 2023, 14 November 2023, 13 December 2023, 09 January 2024, 19 January 2024, and 31 January 2024, the landlord issued the tenant 14-day breach notices requiring them to maintain the property in reasonably clean and tidy state.
The landlord states that none of the notices have been remedied and submits that it would be inequitable to refuse to terminate the tenancy. Law
Under section 40 (1)(c) of the Residential Tenancies Act 1986 (The “Act’), the tenant must keep the property reasonably clean and tidy. What is reasonably clean and tidy is not defined in the Act. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. The Tribunal must evaluate the evidence available, including inspection reports and photographs.
Under section 56(1)(c) of the Act, 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.
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.
In Vincent Dean Huff v City Central Property Management [2020] NZDC 19229, the District Court considered s 56(1), and set out a range of factors relevant to whether it would be “inequitable to refuse” to terminate the tenancy: i. The history of the tenancy. ii. Whether there had been a persistent failure after repeated warnings. iii. Whether the history of breaches is such that it is unlikely the tenant would comply with their obligations in the future. iv. Whether the breach was inadvertent or deliberately committed. v. The conduct of the landlord. vi. The gravity of the breach. vii. Whether termination is a proportionate response to the breach. Decision
The tenant states that on or about 2020 / 2021, they were involved in a serious motor vehicle accident which resulted in a head injury and subsequent decline in cognitive functioning. While acknowledging receipt of the breach notices the tenant states that apart from recognising them as a “warning” they were unable to process or retain the content. The tenant states they receive regular ACC counselling and psychological assistance.
[Support person 1] states that a needs assessment conducted in 2023 secured funding for daily cleaning assistance. The tenant states that at the time they did not view the property as being unclean and declined assistance due to their inability to process the matter. This was confirmed by [Support person 1].
[Support person 1] also confirmed that the tenant has been referred for an alcohol and drug assessment on 17 April 2024, and a neurological assessment scheduled for 29 April 2024. The tenant has acknowledged that there is in fact a need for assistance and expressed a willingness to accept it. It is unclear whether the tenant’s needs require reassessing.
Prior to the inspection and issue of the first breach notice in July 2023, there is no evidence of any cleanliness issues. [The landlord’s representative 1] does not consider herself suitably qualified to comment on whether the head injury or any subsequent cognitive decline has been a contributing factor. Given the absence of any evidence of breaches leading up to the accident, and after hearing from the tenant and considering the material produced, it is more likely than not that the head injury has been a contributing factor.
The issues in this claim for termination are whether there has been a failure to maintain the property in a reasonably clean condition, and if being satisfied more likely than not that there has been such a failure, whether it would be inequitable, considering the factors contained in Vincent Dean Huff v City Central Property Management, to refuse termination.
On the evidence, I am satisfied that the tenant has failed to maintain the property in a reasonably clean and tidy condition and has failed to remedy the notices issued. In my opinion, the state of uncleanliness must reach a stage where objectively assessed it is resulting in lasting damage to the landlord or poses a demonstrable risk to the health and safety of the tenant or others, such as other tenants of the landlord or nearby neighbours. In this case, objectively assessed, there is insufficient evidence of lasting damage caused or that the state of the uncleanliness is posing a risk to the health and safety of the tenant or others nearby.
Having carefully considered the evidence and factors in Vincent Dean Huff v City Central Property Management, I am not satisfied that termination would be a proportionate response. I am therefore not satisfied that it would be inequitable to refuse termination. Termination for failing to maintain the property reasonably clean and tidy is declined. Failing to remove occupants.
During an inspection in or around November 2023, the landlord found the tenant and two other additional occupants. On 14 November 2023, the landlord issued a 14-notice requiring the tenant to remove these additional occupants. The landlord states that the tenant failed to remedy the notice along with other notices subsequently issued on 06 December 2023, 09 January 2024, and 01 February 2024.
The landlord also states that during a recent inspection they observed a utensil they suspect is being used for consuming illicit substances, and further were barred entry to one of the bedrooms occupied by the additional occupants. Law
Section 40 (3) of the Act provides that where the tenancy agreement specifies a maximum number of persons that my 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.
Breaching this provision without a reasonable excuse my attract exemplary damages. A landlord may also issue a notice and if not remedied seek termination under section 56(1) of the Act on the basis that it would be inequitable to refuse termination.
The tenancy agreement contains a term mirroring the provision stating, “The tenant shall, if a maximum number of occupants is stated in the tenancy agreement, not exceed that number. Decision
The tenant states that the occupants referred to in the first notice were a homeless mother and a young child. The tenant states that they felt sympathy for their situation and offered them a temporary place to stay. The tenant states they stayed for about six weeks before they found other accommodation. The tenant states that after that a middle-aged couple and a younger male moved in, each occupying a room, while the tenant states they sleep in the lounge.
There is no evidence that the tenant has sublet or assigned the property to another. The tenant stated that they had allowed these people to stay out of sympathy but also admitted to feeling bullied and due to their cognitive impairment had difficulty saying no.
[The landlord’s representative 1] states the landlord has asked the occupants to move, but that they either return shortly afterward or are replaced by others. The landlord, as they are not the legal occupier under the agreement, cannot unilaterally issue trespass notices on the tenant’s behalf. The tenant is clearly vulnerable to exploitation.
An issue is this case is that the agreement entered by the parties on 26 June 2018 does not actually specify the maximum number of occupants allowed at the property. [The landlord’s representative 1] has acknowledged that this was an oversight. [The landlord’s representative 2] submits that as the property has two bedrooms, it could be inferred that the maximum allowed was the tenant and perhaps one other.
Section 85 (2) of the Act provides that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or legal forms or technicalities.
In this case however, there is no specific cause of action, as the agreement lacks a provision specifying the maximum number of occupants. While it is conceivable that one or two may have been envisaged at the commencement of the tenancy, in the circumstances the Tribunal is unwilling to infer such a term into the agreement and subsequently find the tenant in breach. Doing so would be unfair. The claim for termination for additional occupants is also declined. Additional comment
The situation is untenable. [The landlord’s representative 1] states that the landlord is currently unable to offer the tenant alternate accommodation. That they have made a referral to [Housing Provider] but given the current social housing climate, and what [The landlord’s representative 1] described as a general shortage of one-bedroom properties in the area, that obtaining alternate accommodation could take a considerable amount of time. On that basis seeking termination was seen as the only remaining option. [The landlord’s representative 2] however suggested another option to vary the tenancy agreement by adding a condition that only the tenant could occupy the property. Provided the tenant had capacity to agree to such a variation that may be an option. However, I cannot comment further on this matter.
I have encouraged the tenant to work with [Support person 1] and accept assistance offered to maintain the tenancy, which is on the present course clearly at risk. Name suppression.
Both parties seek name suppression.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
The tenant has been wholly successful and is granted name suppression.
Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
In the case of Erceg v Erceg [2016] NZSC 135 at [2]-[3],[13], and [18], the Supreme Court stated the principle of open justice was fundamental to the common law system of civil and criminal justice. The Court stated that it was well established that there were circumstances in which the interests of justice required departure from the general principle, but only to the extent required to serve the administration of justice. The Court referred to the administration of justice standard as capable of accommodating the particular circumstances of individual cases with consideration given to the broader public interest. The Court went onto endorse the principle in ASB Bank Ltd v AB [2010] 3 NZLR 427 (HC), stating, that there must be specific adverse consequences sufficient to justify an exception to the rule, adding that the threshold was a high one.
While I am satisfied that the facts and reasoning of this decision are in the public interest, I am not satisfied that this interest necessarily extends to the name of the social housing provider. Upon careful consideration, I am satisfied that there are sufficient grounds to depart from the principle of open justice and exercise the discretion in section 95A (4). The Tribunal also orders suppression of the landlord’s name.

Tenancy Tribunal case 4756450 — 14-day notice

At a glance

Tenancy Tribunal case 4756450 — 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